Copyright, Designs and Patents Act 1988 · [F25A Sound recordings. (1)In this Part “sound...

Status: Point in time view as at 01/02/1991. This version of this Act contains provisions that are not valid for this point in time.Changes to legislation: Copyright, Designs and Patents Act 1988 is up to date with all changes known to be in

force on or before 25 November 2020. There are changes that may be brought into force at a future date. Changesthat have been made appear in the content and are referenced with annotations. (See end of Document for details)

Copyright, Designs and Patents Act 19881988 CHAPTER 48

An Act to restate the law of copyright, with amendments; to make fresh provisionas to the rights of performers and others in performances; to confer a design rightin original designs; to amend the Registered Designs Act 1949; to make provisionwith respect to patent agents and trade mark agents; to confer patents and designsjurisdiction on certain county courts; to amend the law of patents; to make provisionwith respect to devices designed to circumvent copy-protection of works in electronicform; to make fresh provision penalising the fraudulent reception of transmissions; tomake the fraudulent application or use of a trade mark an offence; to make provisionfor the benefit of the Hospital for Sick Children, Great Ormond Street, London; toenable financial assistance to be given to certain international bodies; and for connectedpurposes. [15th November 1988]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of theLords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by theauthority of the same, as follows:—

Modifications etc. (not altering text)C1 Act amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1)

PART I

COPYRIGHT

Modifications etc. (not altering text)C2 Pt. I (ss. 1-179) modified by S.I. 1989/988, art. 2(3)C3 Pt. I (ss. 1-179) extended by S.I. 1989/1293, arts. 2(3), 3, 4(4)-(6)C4 Pt. I (ss. 1-179) applied (with modifications) by S.I. 1993/942, arts. 2(3), 5, Sch. 4 (with art. 6)

http://www.legislation.gov.uk/id/ukpga/1990/42

http://www.legislation.gov.uk/id/ukpga/1990/42/section/176

http://www.legislation.gov.uk/id/ukpga/1990/42/schedule/17/paragraph/7/1

http://www.legislation.gov.uk/id/uksi/1989/988

http://www.legislation.gov.uk/id/uksi/1989/988/article/2/3



http://www.legislation.gov.uk/id/uksi/1989/1293/article/3





http://www.legislation.gov.uk/id/uksi/1993/942/schedule/4


2 Copyright, Designs and Patents Act 1988 (c. 48)Part I – Copyright

Chapter I – Subsistence, ownership and duration of copyrightDocument Generated: 2020-11-25



C5 Pt. I (ss. 1-179) applied by S.I. 1993/942, arts. 4, 5, Sch. 4 (with art. 6)Pt. I (ss. 1-179) applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(3), 3, 4(3)(5), 5, 7,Schs. 2, 4, 5 (as amended (22.4.2003) by S.I. 2003/774, arts. 2-5) (which S.I. and amending S.I. wererevoked (1.5.2005) by S.I. 2005/852, art. 8(b)(d))

C6 Pt. 1 (ss. 1-179) extended in part (with modifications) by The Copyright (Bermuda) Order 2003 (S.I.2003/1517), art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amendingS.I.)

C7 Pt. 1 (ss. 1-179) modified (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.2003/2498), reg. 37(2) (with regs. 31-40)

C8 Pt. 1 (ss. 1-179) extended (with modifications) (1.5.2005) by The Copyright and Performances(Application to Other Countries) Order 2005 (S.I. 2005/852), arts. 2-5, Sch. (with art. 7) (which S.I.was revoked (6.4.2006) by SI 2006/316, art. 1(3))

C9 Pt. 1 (ss. 1-179) extended in part (with modifications) by The Copyright (Gibraltar) Order 2005 (S.I.2005/853), art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amendingS.I.)

C10 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2006) by The Copyright and Performances(Application to Other Countries) Order 2006 (S.I. 2006/316), {arts. 2- 5}, Sch. (with art. 7) (which S.I.was revoked (6.4.2007) by S.I. 2007/273, art. 1(3))

C11 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2007) by The Copyright and Performances(Application to Other Countries) Order 2007 (S.I. 2007/273), arts. 2-5, Sch. (with art. 7) (which S.I.was revoked (6.4.2008) by SI 2008/677, art. 1(3))

C12 Pt. 1 (ss. 1-179) extended (with modifications) (6.4.2008) by The Copyright and Performances(Application to Other Countries) Order 2008 (S.I. 2008/677), arts. 2-5, Sch. (with art. 7)

CHAPTER I

SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT

Modifications etc. (not altering text)C13 Pt. I Ch. 1 (ss. 1-15) applied in part (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Introductory

1 Copyright and copyright works.

(1) Copyright is a property right which subsists in accordance with this Part in thefollowing descriptions of work—

(a) original literary, dramatic, musical or artistic works,(b) sound recordings, films, broadcasts or cable programmes, and(c) the typographical arrangement of published editions.

(2) In this Part “copyright work” means a work of any of those descriptions in whichcopyright subsists.

(3) Copyright does not subsist in a work unless the requirements of this Part with respectto qualification for copyright protection are met (see section 153 and the provisionsreferred to there).









http://www.legislation.gov.uk/id/uksi/1999/1751/article/4/3/5









http://www.legislation.gov.uk/id/uksi/2005/852/article/8/b/d




http://www.legislation.gov.uk/id/uksi/2003/1517/schedule



http://www.legislation.gov.uk/id/uksi/2003/2498/regulation/37/2

http://www.legislation.gov.uk/id/uksi/2003/2498/regulation/31


























http://www.legislation.gov.uk/id/uksi/1996/2967/part/III

Copyright, Designs and Patents Act 1988 (c. 48)Part I – CopyrightChapter I – Subsistence, ownership and duration of copyrightDocument Generated: 2020-11-25

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2 Rights subsisting in copyright works.

(1) The owner of the copyright in a work of any description has the exclusive right todo the acts specified in Chapter II as the acts restricted by the copyright in a work ofthat description.

(2) In relation to certain descriptions of copyright work the following rights conferred byChapter IV (moral rights) subsist in favour of the author, director or commissioner ofthe work, whether or not he is the owner of the copyright—

(a) section 77 (right to be identified as author or director),(b) section 80 (right to object to derogatory treatment of work), and(c) section 85 (right to privacy of certain photographs and films).

Descriptions of work and related provisions

3 Literary, dramatic and musical works.

(1) In this Part—“literary work” means any work, other than a dramatic or musical work,

which is written, spoken or sung, and accordingly includes—(a) a table or compilation, and(b) a computer program;

“dramatic work” includes a work of dance or mime; and“musical work” means a work consisting of music, exclusive of any words

or action intended to be sung, spoken or performed with the music.

(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it isrecorded, in writing or otherwise; and references in this Part to the time at which sucha work is made are to the time at which it is so recorded.

(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by orwith the permission of the author; and where it is not recorded by the author, nothing inthat subsection affects the question whether copyright subsists in the record as distinctfrom the work recorded.

VALID FROM 01/01/1998

[F13A Databases

(1) In this Part “database” means a collection of independent works, data or othermaterials which—

(a) are arranged in a systematic or methodical way, and(b) are individually accessible by electronic or other means.

(2) For the purposes of this Part a literary work consisting of a database is original if,and only if, by reason of the selection or arrangement of the contents of the databasethe database constitutes the author’s own intellectual creation.]





Textual AmendmentsF1 S. 3A inserted (1.1.1998) by S.I. 1997/3032, reg. 6 (with Pt. IV)

4 Artistic works.

(1) In this Part “artistic work” means—(a) a graphic work, photograph, sculpture or collage, irrespective of artistic

quality,(b) a work of architecture being a building or a model for a building, or(c) a work of artistic craftsmanship.

(2) In this Part—“building” includes any fixed structure, and a part of a building or fixed

structure;“graphic work” includes—

(a) any painting, drawing, diagram, map, chart or plan, and(b) any engraving, etching, lithograph, woodcut or similar work;

“photograph” means a recording of light or other radiation on any mediumon which an image is produced or from which an image may by any meansbe produced, and which is not part of a film;

“sculpture” includes a cast or model made for purposes of sculpture.


[F25A Sound recordings.

(1) In this Part “sound recording” means—(a) a recording of sounds, from which the sounds may be reproduced, or(b) a recording of the whole or any part of a literary, dramatic or musical work,

from which sounds reproducing the work or part may be produced,regardless of the medium on which the recording is made or the method by whichthe sounds are reproduced or produced.

(2) Copyright does not subsist in a sound recording which is, or to the extent that it is,a copy taken from a previous sound recording.]

Textual AmendmentsF2 Ss. 5A, 5B substituted for s. 5 (1.1.1996) by S.I. 1995/3297, reg. 9(1) (with Pt. III)



http://www.legislation.gov.uk/id/uksi/1997/3032/part/IV





5




[F35B Films.

(1) In this Part “film” means a recording on any medium from which a moving imagemay by any means be produced.

(2) The sound track accompanying a film shall be treated as part of the film for thepurposes of this Part.

(3) Without prejudice to the generality of subsection (2), where that subsection applies—(a) references in this Part to showing a film include playing the film sound track

to accompany the film, and(b) references to playing a sound recording do not include playing the film sound

track to accompany the film.

(4) Copyright does not subsist in a film which is, or to the extent that it is, a copy takenfrom a previous film.

(5) Nothing in this section affects any copyright subsisting in a film sound track as asound recording.]

Textual AmendmentsF3 Ss. 5A, 5B substituted for s. 5 (1.1.1996) by S.I. 1995/3297, reg. 9(1) (with Pt. III)

5 Sound recordings and films.

(1) In this Part—“sound recording” means—

(a) a recording of sounds, from which the sounds may be reproduced, or(b) a recording of the whole or any part of a literary, dramatic or musical work,

from which sounds reproducing the work or part may be produced,regardless of the medium on which the recording is made or the method by which thesounds are reproduced or produced; and

“film” means a recording on any medium from which a moving image may by anymeans be produced.

(2) Copyright does not subsist in a sound recording or film which is, or to the extent thatit is, a copy taken from a previous sound recording or film.

6 Broadcasts.

(1) In this Part a “broadcast” means a transmission by wireless telegraphy of visualimages, sounds or other information which—

(a) is capable of being lawfully received by members of the public, or(b) is transmitted for presentation to members of the public;

and references to broadcasting shall be construed accordingly.








(2) An encrypted transmission shall be regarded as capable of being lawfully receivedby members of the public only if decoding equipment has been made available tomembers of the public by or with the authority of the person making the transmissionor the person providing the contents of the transmission.

(3) References in this Part to the person making a broadcast, broadcasting a work, orincluding a work in a broadcast are—

(a) to the person transmitting the programme, if he has responsibility to any extentfor its contents, and

(b) to any person providing the programme who makes with the persontransmitting it the arrangements necessary for its transmission;

and references in this Part to a programme, in the context of broadcasting, are to anyitem included in a broadcast.

(4) For the purposes of this Part the place from which a broadcast is made is, in the caseof a satellite transmission, the place from which the signals carrying the broadcast aretransmitted to the satellite.

(5) References in this Part to the reception of a broadcast include reception of a broadcastrelayed by means of a telecommunications system.

(6) Copyright does not subsist in a broadcast which infringes, or to the extent that itinfringes, the copyright in another broadcast or in a cable programme.


[F46A Safeguards in case of certain satellite broadcasts.

(1) This section applies where the place from which a broadcast by way of satellitetransmission is made is located in a country other than an EEA State and the law ofthat country fails to provide at least the following level of protection—

(a) exclusive rights in relation to broadcasting equivalent to those conferredby section 20 (infringement by broadcasting) on the authors of literary,dramatic, musical and artistic works, films and broadcasts;

(b) a right in relation to live broadcasting equivalent to that conferred ona performer by section 182(1)(b) (consent required for live broadcast ofperformance); and

(c) a right for authors of sound recordings and performers to share in a singleequitable remuneration in respect of the broadcasting of sound recordings.

(2) Where the place from which the programme-carrying signals are transmitted to thesatellite (“the uplink station") is located in an EEA State—

(a) that place shall be treated as the place from which the broadcast is made, and(b) the person operating the uplink station shall be treated as the person making

the broadcast.

(3) Where the uplink station is not located in an EEA State but a person who isestablished in an EEA State has commissioned the making of the broadcast—

(a) that person shall be treated as the person making the broadcast, and


7



(b) the place in which he has his principal establishment in the EuropeanEconomic Area shall be treated as the place from which the broadcast ismade.]

Textual AmendmentsF4 S. 6A inserted (1.12.1996 with effect as mentioned in reg. 28 of the amending S.I.) by S.I. 1996/2967,

reg. 6(2)

7 Cable programmes.

(1) In this Part—“cable programme” means any item included in a cable programme service;

and“cable programme service” means a service which consists wholly or

mainly in sending visual images, sounds or other information by meansof a telecommunications system, otherwise than by wireless telegraphy, forreception—

(a) at two or more places (whether for simultaneous reception or at different timesin response to requests by different users), or

(b) for presentation to members of the public,and which is not, or so far as it is not, excepted by or under the following provisionsof this section.

(2) The following are excepted from the definition of “cable programme service”—(a) a service or part of a service of which it is an essential feature that while

visual images, sounds or other information are being conveyed by the personproviding the service there will or may be sent from each place of reception,by means of the same system or (as the case may be) the same part of it,information (other than signals sent for the operation or control of the service)for reception by the person providing the service or other persons receiving it;

(b) a service run for the purposes of a business where—(i) no person except the person carrying on the business is concerned in

the control of the apparatus comprised in the system,(ii) the visual images, sounds or other information are conveyed by the

system solely for purposes internal to the running of the business andnot by way of rendering a service or providing amenities for others,and

(iii) the system is not connected to any other telecommunications system;(c) a service run by a single individual where—

(i) all the apparatus comprised in the system is under his control,(ii) the visual images, sounds or other information conveyed by the

system are conveyed solely for domestic purposes of his, and(iii) the system is not connected to any other telecommunications system;

(d) services where—(i) all the apparatus comprised in the system is situated in, or connects,

premises which are in single occupation, and(ii) the system is not connected to any other telecommunications system,







other than services operated as part of the amenities provided for residents orinmates of premises run as a business;

(e) services which are, or to the extent that they are, run for persons providingbroadcasting or cable programme services or providing programmes for suchservices.

(3) The Secretary of State may by order amend subsection (2) so as to add or removeexceptions, subject to such transitional provision as appears to him to be appropriate.

(4) An order shall be made by statutory instrument; and no order shall be made unless adraft of it has been laid before and approved by resolution of each House of Parliament.

(5) References in this Part to the inclusion of a cable programme or work in a cableprogramme service are to its transmission as part of the service; and references to theperson including it are to the person providing the service.

(6) Copyright does not subsist in a cable programme—(a) if it is included in a cable programme service by reception and immediate re-

transmission of a broadcast, or(b) if it infringes, or to the extent that it infringes, the copyright in another cable

programme or in a broadcast.

8 Published editions.

(1) In this Part “published edition”, in the context of copyright in the typographicalarrangement of a published edition, means a published edition of the whole or any partof one or more literary, dramatic or musical works.

(2) Copyright does not subsist in the typographical arrangement of a published edition if,or to the extent that, it reproduces the typographical arrangement of a previous edition.

Authorship and ownership of copyright

9 Authorship of work.

(1) In this Part “author”, in relation to a work, means the person who creates it.

(2) That person shall be taken to be—(a) in the case of a sound recording or film, the person by whom the arrangements

necessary for the making of the recording or film are undertaken;(b) in the case of a broadcast, the person making the broadcast (see section 6(3))

or, in the case of a broadcast which relays another broadcast by reception andimmediate re-transmission, the person making that other broadcast;

(c) in the case of a cable programme, the person providing the cable programmeservice in which the programme is included;

(d) in the case of the typographical arrangement of a published edition, thepublisher.

(3) In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangementsnecessary for the creation of the work are undertaken.


9



(4) For the purposes of this Part a work is of “unknown authorship” if the identity of theauthor is unknown or, in the case of a work of joint authorship, if the identity of noneof the authors is known.

(5) For the purposes of this Part the identity of an author shall be regarded as unknown ifit is not possible for a person to ascertain his identity by reasonable inquiry; but if hisidentity is once known it shall not subsequently be regarded as unknown.

10 Works of joint authorship.

(1) In this Part a “work of joint authorship” means a work produced by the collaborationof two or more authors in which the contribution of each author is not distinct fromthat of the other author or authors.

(2) A broadcast shall be treated as a work of joint authorship in any case where more thanone person is to be taken as making the broadcast (see section 6(3)).

(3) References in this Part to the author of a work shall, except as otherwise provided,be construed in relation to a work of joint authorship as references to all the authorsof the work.

11 First ownership of copyright.

(1) The author of a work is the first owner of any copyright in it, subject to the followingprovisions.

(2) Where a literary, dramatic, musical or artistic work is made by an employee in thecourse of his employment, his employer is the first owner of any copyright in the worksubject to any agreement to the contrary.

(3) This section does not apply to Crown copyright or Parliamentary copyright (seesections 163 and 165) or to copyright which subsists by virtue of section 168(copyright of certain international organisations).

Duration of copyright

12 Duration of copyright in literary, dramatic, musical or artistic works.

(1) Copyright in a literary, dramatic, musical or artistic work expires at the end of theperiod of 50 years from the end of the calendar year in which the author dies, subjectto the following provisions of this section.

(2) If the work is of unknown authorship, copyright expires at the end of the period of50 years from the end of the calendar year in which it is first made available to thepublic; and subsection (1) does not apply if the identity of the author becomes knownafter the end of that period.

For this purpose making available to the public includes—(a) in the case of a literary, dramatic or musical work—

(i) performance in public, or(ii) being broadcast or included in a cable programme service;

(b) in the case of an artistic work—(i) exhibition in public,





(ii) a film including the work being shown in public, or(iii) being included in a broadcast or cable programme service;

but in determining generally for the purposes of this subsection whether awork has been made available to the public no account shall be taken of anyunauthorised act.

(3) If the work is computer-generated neither of the above provisions applies andcopyright expires at the end of the period of 50 years from the end of the calendar yearin which the work was made.

(4) In relation to a work of joint authorship—(a) the reference in subsection (1) to the death of the author shall be construed —

(i) if the identity of all the authors is known, as a reference to the deathof the last of them to die, and

(ii) if the identity of one or more of the authors is known and the identityof one or more others is not, as a reference to the death of the last ofthe authors whose identity is known; and

(b) the reference in subsection (2) to the identity of the author becoming knownshall be construed as a reference to the identity of any of the authors becomingknown.

(5) This section does not apply to Crown copyright or Parliamentary copyright (seesections 163 to 166) or to copyright which subsists by virtue of section 168 (copyrightof certain international organisations).


[F513A Duration of copyright in sound recordings.

(1) The following provisions have effect with respect to the duration of copyright in asound recording.

(2) Copyright expires—(a) at the end of the period of 50 years from the end of the calendar year in

which it is made, or(b) if during that period it is released, 50 years from the end of the calendar year

in which it is released;subject as follows.

(3) For the purposes of subsection (2) a sound recording is “released" when it is firstpublished, played in public, broadcast or included in a cable programme service;but in determining whether a sound recording has been released no account shall betaken of any unauthorised act.

(4) Where the author of a sound recording is not a national of an EEA state, the durationof copyright is that to which the sound recording is entitled in the country of whichthe author is a national, provided that does not exceed the period which would applyunder subsections (2) and (3).

(5) If or to the extent that the application of subsection (4) would be at variance with aninternational obligation to which the United Kingdom became subject prior to 29th


11



October 1993, the duration of copyright shall be as specified in subsections (2) and(3).]

Textual AmendmentsF5 Ss. 13A, 13B substituted for s. 13 (1.1.1996) by S.I. 1995/3297, reg. 6(1) (with Pt. IV)


[F613B Duration of copyright in films.

(1) The following provisions have effect with respect to the duration of copyright in afilm.

(2) Copyright expires at the end of the period of 70 years from the end of the calendaryear in which the death occurs of the last to die of the following persons—

(a) the principal director,(b) the author of the screenplay,(c) the author of the dialogue, or(d) the composer of music specially created for and used in the film;

subject as follows.

(3) If the identity of one or more of the persons referred to in subsection (2)(a) to (d) isknown and the identity of one or more others is not, the reference in that subsectionto the death of the last of them to die shall be construed as a reference to the deathof the last whose identity is known.

(4) If the identity of the persons referred to in subsection (2)(a) to (d) is unknown,copyright expires at—

(a) the end of the period of 70 years from the end of the calendar year in whichthe film was made, or

(b) if during that period the film is made available to the public, at the end ofthe period of 70 years from the end of the calendar year in which it is firstso made available.

(5) Subsections (2) and (3) apply if the identity of any of those persons becomes knownbefore the end of the period specified in paragraph (a) or (b) of subsection (4).

(6) For the purposes of subsection (4) making available to the public includes—(a) showing in public, or(b) being broadcast or included in a cable programme service;

but in determining generally for the purposes of that subsection whether a film hasbeen made available to the public no account shall be taken of any unauthorised act.

(7) Where the country of origin is not an EEA state and the author of the film is not anational of an EEA state, the duration of copyright is that to which the work is entitledin the country of origin, provided that does not exceed the period which would applyunder subsections (2) to (6).








(8) In relation to a film of which there are joint authors, the reference in subsection (7)to the author not being a national of an EEA state shall be construed as a referenceto none of the authors being a national of an EEA state.

(9) If in any case there is no person falling within paragraphs (a) to (d) of subsection (2),the above provisions do not apply and copyright expires at the end of the period of50 years from the end of the calendar year in which the film was made.

(10) For the purposes of this section the identity of any of the persons referred to insubsection (2)(a) to (d) shall be regarded as unknown if it is not possible for a personto ascertain his identity by reasonable inquiry; but if the identity of any such personis once known it shall not subsequently be regarded as unknown.]

Textual AmendmentsF6 Ss. 13A, 13B substituted for s. 13 (1.1.1996) by S.I. 1995/3297, reg. 6(1) (with Pt. IV)

13 Duration of copyright in sound recordings and films.

(1) Copyright in a sound recording or film expires—(a) at the end of the period of 50 years from the end of the calendar year in which

it is made, or(b) if it is released before the end of that period, 50 years from the end of the

calendar year in which it is released.

(2) A sound recording or film is “released" when—(a) it is first published, broadcast or included in a cable programme service, or(b) in the case of a film or film sound-track, the film is first shown in public;

but in determining whether a work has been released no account shall be taken of anyunauthorised act.

14 Duration of copyright in broadcasts and cable programmes.

(1) Copyright in a broadcast or cable programme expires at the end of the period of50 years from the end of the calendar year in which the broadcast was made or theprogramme was included in a cable programme service.

(2) Copyright in a repeat broadcast or cable programme expires at the same time as thecopyright in the original broadcast or cable programme; and accordingly no copyrightarises in respect of a repeat broadcast or cable programme which is broadcast orincluded in a cable programme service after the expiry of the copyright in the originalbroadcast or cable programme.

(3) A repeat broadcast or cable programme means one which is a repeat either of abroadcast previously made or of a cable programme previously included in a cableprogramme service.





13



15 Duration of copyright in typographical arrangement of published editions.

Copyright in the typographical arrangement of a published edition expires at the endof the period of 25 years from the end of the calendar year in which the edition wasfirst published.


[F715A Meaning of country of origin.

(1) For the purposes of the provisions of this Part relating to the duration of copyrightthe country of origin of a work shall be determined as follows.

(2) If the work is first published in a Berne Convention country and is not simultaneouslypublished elsewhere, the country of origin is that country.

(3) If the work is first published simultaneously in two or more countries only one ofwhich is a Berne Convention country, the country of origin is that country.

(4) If the work is first published simultaneously in two or more countries of which twoor more are Berne Convention countries, then—

(a) if any of those countries is an EEA state, the country of origin is that country;and

(b) if none of those countries is an EEA state, the country of origin is the BerneConvention country which grants the shorter or shortest period of copyrightprotection.

(5) If the work is unpublished or is first published in a country which is not a BerneConvention country (and is not simultaneously published in a Berne Conventioncountry), the country of origin is—

(a) if the work is a film and the maker of the film has his headquarters in, or isdomiciled or resident in a Berne Convention country, that country;

(b) if the work is—(i) a work of architecture constructed in a Berne Convention country, or

(ii) an artistic work incorporated in a building or other structure situatedin a Berne Convention country,

that country;(c) in any other case, the country of which the author of the work is a national.

(6) In this section—(a) a “Berne Convention country” means a country which is a party to any Act

of the International Convention for the Protection of Literary and ArtisticWorks signed at Berne on 9th September 1886; and

(b) references to simultaneous publication are to publication within 30 days offirst publication.]

Textual AmendmentsF7 S. 15A inserted (1.1.1996) by S.I. 1995/3297, reg. 8(1) (with Pt. IV)





Chapter II – Rights of Copyright OwnerDocument Generated: 2020-11-25



CHAPTER II

RIGHTS OF COPYRIGHT OWNER

Modifications etc. (not altering text)C14 Pt. I Ch. II (ss. 16-27) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1) (with Pt.

III)

The acts restricted by copyright

16 The acts restricted by copyright in a work.

(1) The owner of the copyright in a work has, in accordance with the following provisionsof this Chapter, the exclusive right to do the following acts in the United Kingdom—

(a) to copy the work (see section 17);(b) to issue copies of the work to the public (see section 18);(c) to perform, show or play the work in public (see section 19);(d) to broadcast the work or include it in a cable programme service (see

section 20);(e) to make an adaptation of the work or do any of the above in relation to an

adaptation (see section 21);and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2) Copyright in a work is infringed by a person who without the licence of the copyrightowner does, or authorises another to do, any of the acts restricted by the copyright.

(3) References in this Part to the doing of an act restricted by the copyright in a work areto the doing of it—

(a) in relation to the work as a whole or any substantial part of it, and(b) either directly or indirectly;

and it is immaterial whether any intervening acts themselves infringe copyright.

(4) This Chapter has effect subject to—(a) the provisions of Chapter III (acts permitted in relation to copyright works),

and(b) the provisions of Chapter VII (provisions with respect to copyright licensing).

17 Infringement of copyright by copying.

(1) The copying of the work is an act restricted by the copyright in every description ofcopyright work; and references in this Part to copying and copies shall be construedas follows.

(2) Copying in relation to a literary, dramatic, musical or artistic work means reproducingthe work in any material form.

This includes storing the work in any medium by electronic means.





Copyright, Designs and Patents Act 1988 (c. 48)Part I – CopyrightChapter II – Rights of Copyright OwnerDocument Generated: 2020-11-25

15



(3) In relation to an artistic work copying includes the making of a copy in threedimensions of a two-dimensional work and the making of a copy in two dimensionsof a three-dimensional work.

(4) Copying in relation to a film, television broadcast or cable programme includesmaking a photograph of the whole or any substantial part of any image forming partof the film, broadcast or cable programme.

(5) Copying in relation to the typographical arrangement of a published edition meansmaking a facsimile copy of the arrangement.

(6) Copying in relation to any description of work includes the making of copies whichare transient or are incidental to some other use of the work.

18 Infringement by issue of copies to the public.

(1) The issue to the public of copies of the work is an act restricted by the copyright inevery description of copyright work.

(2) References in this Part to the issue to the public of copies of a work are to the actof putting into circulation copies not previously put into circulation, in the UnitedKingdom or elsewhere, and not to—

(a) any subsequent distribution, sale, hiring or loan of those copies, or(b) any subsequent importation of those copies into the United Kingdom;

except that in relation to sound recordings, films and computer programs the restrictedact of issuing copies to the public includes any rental of copies to the public.


[F818A Infringement by rental or lending of work to the public.

(1) The rental or lending of copies of the work to the public is an act restricted by thecopyright in—

(a) a literary, dramatic or musical work,(b) an artistic work, other than—

(i) a work of architecture in the form of a building or a model for abuilding, or

(ii) a work of applied art, or(c) a film or a sound recording.

(2) In this Part, subject to the following provisions of this section—(a) “rental" means making a copy of the work available for use, on terms that

it will or may be returned, for direct or indirect economic or commercialadvantage, and

(b) “lending" means making a copy of the work available for use, on terms thatit will or may be returned, otherwise than for direct or indirect economic orcommercial advantage, through an establishment which is accessible to thepublic.

(3) The expressions “rental" and “lending" do not include—





(a) making available for the purpose of public performance, playing or showingin public, broadcasting or inclusion in a cable programme service;

(b) making available for the purpose of exhibition in public; or(c) making available for on-the-spot reference use.

(4) The expression “lending" does not include making available between establishmentswhich are accessible to the public.

(5) Where lending by an establishment accessible to the public gives rise to a paymentthe amount of which does not go beyond what is necessary to cover the operatingcosts of the establishment, there is no direct or indirect economic or commercialadvantage for the purposes of this section.

(6) References in this Part to the rental or lending of copies of a work include the rentalor lending of the original.]

Textual AmendmentsF8 S. 18A inserted (1.12.1996) by S.I. 1996/2967, reg. 10(2) (with Pt. III)

19 Infringement by performance, showing or playing of work in public.

(1) The performance of the work in public is an act restricted by the copyright in a literary,dramatic or musical work.

(2) In this Part “performance”, in relation to a work—(a) includes delivery in the case of lectures, addresses, speeches and sermons, and(b) in general, includes any mode of visual or acoustic presentation, including

presentation by means of a sound recording, film, broadcast or cableprogramme of the work.

(3) The playing or showing of the work in public is an act restricted by the copyright ina sound recording, film, broadcast or cable programme.

(4) Where copyright in a work is infringed by its being performed, played or shown inpublic by means of apparatus for receiving visual images or sounds conveyed byelectronic means, the person by whom the visual images or sounds are sent, and inthe case of a performance the performers, shall not be regarded as responsible for theinfringement.

20 Infringement by broadcasting or inclusion in a cable programme service.

The broadcasting of the work or its inclusion in a cable programme service is an actrestricted by the copyright in—

(a) a literary, dramatic, musical or artistic work,(b) a sound recording or film, or(c) a broadcast or cable programme.

21 Infringement by making adaptation or act done in relation to adaptation.

(1) The making of an adaptation of the work is an act restricted by the copyright in aliterary, dramatic or musical work.





17



For this purpose an adaptation is made when it is recorded, in writing or otherwise.

(2) The doing of any of the acts specified in sections 17 to 20, or subsection (1) above,in relation to an adaptation of the work is also an act restricted by the copyright in aliterary, dramatic or musical work.

For this purpose it is immaterial whether the adaptation has been recorded, in writingor otherwise, at the time the act is done.

(3) In this Part “adaptation”—(a) in relation to a literary or dramatic work, means—

(i) a translation of the work;(ii) a version of a dramatic work in which it is converted into a non-

dramatic work or, as the case may be, of a non-dramatic work in whichit is converted into a dramatic work;

(iii) a version of the work in which the story or action is conveyed whollyor mainly by means of pictures in a form suitable for reproduction ina book, or in a newspaper, magazine or similar periodical;

(b) in relation to a musical work, means an arrangement or transcription of thework.

(4) In relation to a computer program a “translation” includes a version of the programin which it is converted into or out of a computer language or code or into a differentcomputer language or code, otherwise than incidentally in the course of running theprogram.

(5) No inference shall be drawn from this section as to what does or does not amount tocopying a work.

Secondary infringement of copyright

22 Secondary infringement: importing infringing copy.

The copyright in a work is infringed by a person who, without the licence of thecopyright owner, imports into the United Kingdom, otherwise than for his private anddomestic use, an article which is, and which he knows or has reason to believe is, aninfringing copy of the work.

23 Secondary infringement: possessing or dealing with infringing copy.

The copyright in a work is infringed by a person who, without the licence of thecopyright owner—

(a) possesses in the course of a business,(b) sells or lets for hire, or offers or exposes for sale or hire,(c) in the course of a business exhibits in public or distributes, or(d) distributes otherwise than in the course of a business to such an extent as to

affect prejudicially the owner of the copyright,an article which is, and which he knows or has reason to believe is, an infringing copyof the work.





24 Secondary infringement: providing means for making infringing copies.

(1) Copyright in a work is infringed by a person who, without the licence of the copyrightowner—

(a) makes,(b) imports into the United Kingdom,(c) possesses in the course of a business, or(d) sells or lets for hire, or offers or exposes for sale or hire,

an article specifically designed or adapted for making copies of that work, knowingor having reason to believe that it is to be used to make infringing copies.

(2) Copyright in a work is infringed by a person who without the licence of the copyrightowner transmits the work by means of a telecommunications system (otherwise thanby broadcasting or inclusion in a cable programme service), knowing or having reasonto believe that infringing copies of the work will be made by means of the receptionof the transmission in the United Kingdom or elsewhere.

25 Secondary infringement: permitting use of premises for infringing performance.

(1) Where the copyright in a literary, dramatic or musical work is infringed by aperformance at a place of public entertainment, any person who gave permission forthat place to be used for the performance is also liable for the infringement unless whenhe gave permission he believed on reasonable grounds that the performance wouldnot infringe copyright.

(2) In this section “place of public entertainment” includes premises which are occupiedmainly for other purposes but are from time to time made available for hire for thepurposes of public entertainment.

26 Secondary infringement: provision of apparatus for infringing performance, &c.

(1) Where copyright in a work is infringed by a public performance of the work, or by theplaying or showing of the work in public, by means of apparatus for—

(a) playing sound recordings,(b) showing films, or(c) receiving visual images or sounds conveyed by electronic means,

the following persons are also liable for the infringement.

(2) A person who supplied the apparatus, or any substantial part of it, is liable for theinfringement if when he supplied the apparatus or part—

(a) he knew or had reason to believe that the apparatus was likely to be so usedas to infringe copyright, or

(b) in the case of apparatus whose normal use involves a public performance,playing or showing, he did not believe on reasonable grounds that it wouldnot be so used as to infringe copyright.

(3) An occupier of premises who gave permission for the apparatus to be brought ontothe premises is liable for the infringement if when he gave permission he knew or hadreason to believe that the apparatus was likely to be so used as to infringe copyright.

(4) A person who supplied a copy of a sound recording or film used to infringe copyrightis liable for the infringement if when he supplied it he knew or had reason to believe


19



that what he supplied, or a copy made directly or indirectly from it, was likely to beso used as to infringe copyright.

Infringing copies

27 Meaning of “infringing copy".

(1) In this Part “infringing copy”, in relation to a copyright work, shall be construed inaccordance with this section.

(2) An article is an infringing copy if its making constituted an infringement of thecopyright in the work in question.

(3) An article is also an infringing copy if—(a) it has been or is proposed to be imported into the United Kingdom, and(b) its making in the United Kingdom would have constituted an infringement

of the copyright in the work in question, or a breach of an exclusive licenceagreement relating to that work.

(4) Where in any proceedings the question arises whether an article is an infringing copyand it is shown—

(a) that the article is a copy of the work, and(b) that copyright subsists in the work or has subsisted at any time,

it shall be presumed until the contrary is proved that the article was made at a timewhen copyright subsisted in the work.

(5) Nothing in subsection (3) shall be construed as applying to an article whichmay lawfully be imported into the United Kingdom by virtue of any enforceableCommunity right within the meaning of section 2(1) of the M1European CommunitiesAct 1972.

(6) In this Part “infringing copy” includes a copy falling to be treated as an infringingcopy by virtue of any of the following provisions—

section 32(5) (copies made for purposes of instruction or examination),section 35(3) (recordings made by educational establishments for educationalpurposes),section 36(5) (reprographic copying by educational establishments for purposesof instruction),section 37(3)(b) (copies made by librarian or archivist in reliance on falsedeclaration),section 56(2) (further copies, adaptations, &c. of work in electronic form retainedon transfer of principal copy),section 63(2) (copies made for purpose of advertising artistic work for sale),section 68(4) (copies made for purpose of broadcast or cable programme), orany provision of an order under section 141 (statutory licence for certainreprographic copying by educational establishments).

Marginal CitationsM1 1972 c. 68.



Chapter III – Acts Permitted in relation to Copyright WorksDocument Generated: 2020-11-25



CHAPTER III

ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS

Modifications etc. (not altering text)C15 Pt. I Ch. III (ss. 28–76) amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1)C16 Pt. I Ch. III (ss. 28-76) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3)

(with Pt. III)

Introductory

28 Introductory provisions.

(1) The provisions of this Chapter specify acts which may be done in relation to copyrightworks notwithstanding the subsistence of copyright; they relate only to the questionof infringement of copyright and do not affect any other right or obligation restrictingthe doing of any of the specified acts.

(2) Where it is provided by this Chapter that an act does not infringe copyright, or maybe done without infringing copyright, and no particular description of copyright workis mentioned, the act in question does not infringe the copyright in a work of anydescription.

(3) No inference shall be drawn from the description of any act which may by virtue ofthis Chapter be done without infringing copyright as to the scope of the acts restrictedby the copyright in any description of work.

(4) The provisions of this Chapter are to be construed independently of each other, sothat the fact that an act does not fall within one provision does not mean that it is notcovered by another provision.

General


[F928A Making of temporary copies

Copyright in a literary work, other than a computer program or a database, or ina dramatic, musical or artistic work, the typographical arrangement of a publishededition, a sound recording or a film, is not infringed by the making of a temporarycopy which is transient or incidental, which is an integral and essential part of atechnological process and the sole purpose of which is to enable—

(a) a transmission of the work in a network between third parties by anintermediary; or

(b) a lawful use of the work;and which has no independent economic significance.]

http://www.legislation.gov.uk/id/ukpga/1988/48/part/I/chapter/III




http://www.legislation.gov.uk/id/ukpga/1988/48/part/I/chapter/III




Copyright, Designs and Patents Act 1988 (c. 48)Part I – CopyrightChapter III – Acts Permitted in relation to Copyright WorksDocument Generated: 2020-11-25

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Textual AmendmentsF9 S. 28A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

reg. 8(1) (with regs. 31-40)

29 Research and private study.

(1) Fair dealing with a literary, dramatic, musical or artistic work for the purposes ofresearch or private study does not infringe any copyright in the work or, in the case ofa published edition, in the typographical arrangement.

(2) Fair dealing with the typographical arrangement of a published edition for the purposesmentioned in subsection (1) does not infringe any copyright in the arrangement.

(3) Copying by a person other than the researcher or student himself is not fair dealing if—(a) in the case of a librarian, or a person acting on behalf of a librarian, he does

anything which regulations under section 40 would not permit to be doneunder section 38 or 39 (articles or parts of published works: restriction onmultiple copies of same material), or

(b) in any other case, the person doing the copying knows or has reason to believethat it will result in copies of substantially the same material being providedto more than one person at substantially the same time and for substantiallythe same purpose.

30 Criticism, review and news reporting.

(1) Fair dealing with a work for the purpose of criticism or review, of that or another workor of a performance of a work, does not infringe any copyright in the work providedthat it is accompanied by a sufficient acknowledgement.

(2) Fair dealing with a work (other than a photograph) for the purpose of reportingcurrent events does not infringe any copyright in the work provided that (subject tosubsection (3)) it is accompanied by a sufficient acknowledgement.

(3) No acknowledgement is required in connection with the reporting of current eventsby means of a sound recording, film, broadcast or cable programme.

31 Incidental inclusion of copyright material.

(1) Copyright in a work is not infringed by its incidental inclusion in an artistic work,sound recording, film, broadcast or cable programme.

(2) Nor is the copyright infringed by the issue to the public of copies, or the playing,showing, broadcasting or inclusion in a cable programme service, of anything whosemaking was, by virtue of subsection (1), not an infringement of the copyright.

(3) A musical work, words spoken or sung with music, or so much of a sound recording,broadcast or cable programme as includes a musical work or such words, shall not beregarded as incidentally included in another work if it is deliberately included.









[F10Visual impairment]

Textual AmendmentsF10 S. 31A and cross-heading inserted (31.10.2003) by 2002 c. 33, ss. 1, 8(2); S.I. 2003/2499, art. 2

[F1131A Making a single accessible copy for personal use

(1) If a visually impaired person has lawful possession or lawful use of a copy (“themaster copy”) of the whole or part of—

(a) a literary, dramatic, musical or artistic work; or(b) a published edition,

which is not accessible to him because of the impairment, it is not an infringement ofcopyright in the work, or in the typographical arrangement of the published edition,for an accessible copy of the master copy to be made for his personal use.

(2) Subsection (1) does not apply—(a) if the master copy is of a musical work, or part of a musical work, and the

making of an accessible copy would involve recording a performance of thework or part of it; or

(b) if the master copy is of a database, or part of a database, and the making ofan accessible copy would infringe copyright in the database.

(3) Subsection (1) does not apply in relation to the making of an accessible copy for aparticular visually impaired person if, or to the extent that, copies of the copyrightwork are commercially available, by or with the authority of the copyright owner, ina form that is accessible to that person.

(4) An accessible copy made under this section must be accompanied by—(a) a statement that it is made under this section; and(b) a sufficient acknowledgement.

(5) If a person makes an accessible copy on behalf of a visually impaired person underthis section and charges for it, the sum charged must not exceed the cost of makingand supplying the copy.

(6) If a person holds an accessible copy made under subsection (1) when he is not entitledto have it made under that subsection, the copy is to be treated as an infringing copy,unless he is a person falling within subsection (7)(b).

(7) A person who holds an accessible copy made under subsection (1) may transfer itto—

(a) a visually impaired person entitled to have the accessible copy made undersubsection (1); or

(b) a person who has lawful possession of the master copy and intends to transferthe accessible copy to a person falling within paragraph (a).



http://www.legislation.gov.uk/id/ukpga/2002/33/section/8/2




23



(8) The transfer by a person (“V”) of an accessible copy made under subsection (1) toanother person (“T”) is an infringement of copyright by V unless V has reasonablegrounds for believing that T is a person falling within subsection (7)(a) or (b).

(9) If an accessible copy which would be an infringing copy but for this section issubsequently dealt with—

(a) it is to be treated as an infringing copy for the purposes of that dealing; and(b) if that dealing infringes copyright, is to be treated as an infringing copy for

all subsequent purposes.

(10) In subsection (9), “dealt with” means sold or let for hire or offered or exposed forsale or hire or communicated to the public.]

Textual AmendmentsF11 S. 31A and cross-heading inserted (31.10.2003) by 2002 c. 33, ss. 1, 8(2) (as amended by S.I.

2003/2498, regs. 1, 2(1), Sch. 1 para. 22(a)); S.I. 2003/2499, art. 2

[F1231B Multiple copies for visually impaired persons

(1) If an approved body has lawful possession of a copy (“the master copy”) of the wholeor part of—

(a) a commercially published literary, dramatic, musical or artistic work; or(b) a commercially published edition,

it is not an infringement of copyright in the work, or in the typographical arrangementof the published edition, for the body to make, or supply, accessible copies for thepersonal use of visually impaired persons to whom the master copy is not accessiblebecause of their impairment.

(2) Subsection (1) does not apply—(a) if the master copy is of a musical work, or part of a musical work, and the

making of an accessible copy would involve recording a performance of thework or part of it; or

(b) if the master copy is of a database, or part of a database, and the making ofan accessible copy would infringe copyright in the database.

(3) Subsection (1) does not apply in relation to the making of an accessible copy if, orto the extent that, copies of the copyright work are commercially available, by orwith the authority of the copyright owner, in a form that is accessible to the same orsubstantially the same degree.

(4) Subsection (1) does not apply in relation to the supply of an accessible copy to aparticular visually impaired person if, or to the extent that, copies of the copyrightwork are commercially available, by or with the authority of the copyright owner, ina form that is accessible to that person.

(5) An accessible copy made under this section must be accompanied by—(a) a statement that it is made under this section; and(b) a sufficient acknowledgement.

(6) If an approved body charges for supplying a copy made under this section, the sumcharged must not exceed the cost of making and supplying the copy.








http://www.legislation.gov.uk/id/uksi/2003/2498/schedule/1/paragraph/22/a







(7) An approved body making copies under this section must, if it is an educationalestablishment, ensure that the copies will be used only for its educational purposes.

(8) If the master copy is in copy-protected electronic form, any accessible copy made ofit under this section must, so far as it is reasonably practicable to do so, incorporatethe same, or equally effective, copy protection (unless the copyright owner agreesotherwise).

(9) If an approved body continues to hold an accessible copy made under subsection (1)when it would no longer be entitled to make or supply such a copy under thatsubsection, the copy is to be treated as an infringing copy.

(10) If an accessible copy which would be an infringing copy but for this section issubsequently dealt with—

(a) it is to be treated as an infringing copy for the purposes of that dealing; and(b) if that dealing infringes copyright, is to be treated as an infringing copy for

all subsequent purposes.

(11) In subsection (10), “dealt with” means sold or let for hire or offered or exposed forsale or hire or communicated to the public.

(12) “Approved body” means an educational establishment or a body that is not conductedfor profit.

(13) “Supplying” includes lending.]

Textual AmendmentsF12 S. 31B inserted (31.10.2003) by 2002 c. 33, ss. 2, 8(2) (as amended by S.I. 2003/2498, regs. 1,

2(1), Sch. 1 para. 22(b)); S.I. 2003/2499, art. 2

[F1331C Intermediate copies and records

(1) An approved body entitled to make accessible copies under section 31B may holdan intermediate copy of the master copy which is necessarily created during theproduction of the accessible copies, but only—

(a) if and so long as the approved body continues to be entitled to makeaccessible copies of that master copy; and

(b) for the purposes of the production of further accessible copies.

(2) An intermediate copy which is held in breach of subsection (1) is to be treated asan infringing copy.

(3) An approved body may lend or transfer the intermediate copy to another approvedbody which is entitled to make accessible copies of the work or published editionunder section 31B.

(4) The loan or transfer by an approved body (“A”) of an intermediate copy to anotherperson (“B”) is an infringement of copyright by A unless A has reasonable groundsfor believing that B—

(a) is another approved body which is entitled to make accessible copies of thework or published edition under section 31B; and







http://www.legislation.gov.uk/id/uksi/2003/2498/schedule/1/paragraph/22/b




25



(b) will use the intermediate copy only for the purposes of the production offurther accessible copies.

(5) If an approved body charges for lending or transferring the intermediate copy, thesum charged must not exceed the cost of the loan or transfer.

(6) An approved body must—(a) keep records of accessible copies made under section 31B and of the persons

to whom they are supplied;(b) keep records of any intermediate copy lent or transferred under this section

and of the persons to whom it is lent or transferred; and(c) allow the copyright owner or a person acting for him, on giving reasonable

notice, to inspect the records at any reasonable time.

(7) Within a reasonable time of making an accessible copy under section 31B, or lendingor transferring an intermediate copy under this section, the approved body must—

(a) notify each relevant representative body; or(b) if there is no such body, notify the copyright owner.

(8) A relevant representative body is a body which—(a) represents particular copyright owners, or owners of copyright in the type of

copyright work concerned; and(b) has given notice to the Secretary of State of the copyright owners, or the

classes of copyright owner, represented by it.

(9) The requirement to notify the copyright owner under subsection (7)(b) does not applyif it is not reasonably possible for the approved body to ascertain the name andaddress of the copyright owner.]

Textual AmendmentsF13 S. 31C inserted (31.10.2003) by 2002 c. 33, ss. 3, 8(2); S.I. 2003/2499, art. 2

[F1431D Licensing schemes

(1) Section 31B does not apply to the making of an accessible copy in a particular formif—

(a) a licensing scheme operated by a licensing body is in force under whichlicences may be granted by the licensing body permitting the making andsupply of copies of the copyright work in that form;

(b) the scheme is not unreasonably restrictive; and(c) the scheme and any modification made to it have been notified to the

Secretary of State by the licensing body.

(2) A scheme is unreasonably restrictive if it includes a term or condition which—(a) purports to prevent or limit the steps that may be taken under section 31B

or 31C; or(b) has that effect.

(3) But subsection (2) does not apply if—(a) the copyright work is no longer published by or with the authority of the

copyright owner; and










(b) there are reasonable grounds for preventing or restricting the making ofaccessible copies of the work.

(4) If section 31B or 31C is displaced by a licensing scheme, sections 119 to 122 applyin relation to the scheme as if it were one to which those sections applied as a resultof section 117.]

Textual AmendmentsF14 S. 31D inserted (31.10.2003) by 2002 c. 33, ss. 4, 8(2); S.I. 2003/2499, art. 2

[F1531E Limitations, etc. following infringement of copyright

(1) The Secretary of State may make an order under this section if it appears to him thatthe making of copies—

(a) under section 31B; or(b) under a licence granted under a licensing scheme that has been notified under

section 31D,has led to infringement of copyright on a scale which, in the Secretary of State’sopinion, would not have occurred if section 31B had not been in force, or the licencehad not been granted.

(2) The order may prohibit one or more named approved bodies, or one or more specifiedcategories of approved body, from—

(a) acting under section 31B; or(b) acting under a licence of a description specified in the order.

(3) The order may disapply—(a) the provisions of section 31B; or(b) the provisions of a licence, or a licensing scheme, of a description specified

in the order,in respect of the making of copies of a description so specified.

(4) If the Secretary of State proposes to make an order he must, before making it,consult—

(a) such bodies representing copyright owners as he thinks fit; and(b) such bodies representing visually impaired persons as he thinks fit.

(5) If the Secretary of State proposes to make an order which includes a prohibition hemust, before making it, consult—

(a) if the proposed order is to apply to one or more named approved bodies, thatbody or those bodies;

(b) if it is to apply to one or more specified categories of approved body, to suchbodies representing approved bodies of that category or those categories ashe thinks fit.

(6) An approved body which is prohibited by an order from acting under a licence maynot apply to the Copyright Tribunal under section 121(1) in respect of a refusal orfailure by a licensing body to grant such a licence.]







27



Textual AmendmentsF15 S. 31E inserted (31.10.2003) by 2002 c. 33, ss. 5, 8(2); S.I. 2003/2499, art. 2

[F1631F Definitions and other supplementary provision for sections 31A to 31E

(1) This section supplements sections 31A to 31E and includes definitions.

(2) A copy of a copyright work (other than an accessible copy made under section 31Aor 31B) is to be taken to be accessible to a visually impaired person only if it is asaccessible to him as it would be if he were not visually impaired.

(3) “Accessible copy”, in relation to a copyright work, means a version which providesfor a visually impaired person improved access to the work.

(4) An accessible copy may include facilities for navigating around the version of thecopyright work but may not include—

(a) changes that are not necessary to overcome problems caused by visualimpairment; or

(b) changes which infringe the right (provided by section 80) not to have thework subjected to derogatory treatment.

(5) “Approved body” has the meaning given in section 31B(12).

(6) “Lending”, in relation to a copy, means making it available for use, otherwise thanfor direct or indirect economic or commercial advantage, on terms that it will or maybe returned.

(7) For the purposes of subsection (6), a loan is not to be treated as being for direct orindirect economic or commercial advantage if a charge is made for the loan whichdoes not exceed the cost of making and supplying the copy.

(8) The definition of “lending” in section 18A does not apply for the purposes of sections31B and 31C.

(9) “Visually impaired person” means a person—(a) who is blind;(b) who has an impairment of visual function which cannot be improved, by the

use of corrective lenses, to a level that would normally be acceptable forreading without a special level or kind of light;

(c) who is unable, through physical disability, to hold or manipulate a book; or(d) who is unable, through physical disability, to focus or move his eyes to the

extent that would normally be acceptable for reading.

(10) The Secretary of State may by regulations prescribe—(a) the form in which; or(b) the procedure in accordance with which,

any notice required under section 31C(7) or (8), or 31D(1), must be given.

(11) Any power to make regulations or orders is exercisable by statutory instrumentsubject to annulment in pursuance of a resolution of either House of Parliament.]










Textual AmendmentsF16 S. 31F inserted (31.10.2003) by 2002 c. 33, ss. 6, 8(2); S.I. 2003/2499, art. 2

Education

32 Things done for purposes of instruction or examination.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by its beingcopied in the course of instruction or of preparation for instruction, provided thecopying—

(a) is done by a person giving or receiving instruction, and(b) is not by means of a reprographic process.

(2) Copyright in a sound recording, film, broadcast or cable programme is not infringedby its being copied by making a film or film sound-track in the course of instruction,or of preparation for instruction, in the making of films or film sound-tracks, providedthe copying is done by a person giving or receiving instruction.

(3) Copyright is not infringed by anything done for the purposes of an examination by wayof setting the questions, communicating the questions to the candidates or answeringthe questions.

(4) Subsection (3) does not extend to the making of a reprographic copy of a musical workfor use by an examination candidate in performing the work.

(5) Where a copy which would otherwise be an infringing copy is made in accordancewith this section but is subsequently dealt with, it shall be treated as an infringingcopy for the purpose of that dealing, and if that dealing infringes copyright for allsubsequent purposes.

For this purpose “dealt with” means sold or let for hire or offered or exposed for saleor hire.

33 Anthologies for educational use.

(1) The inclusion of a short passage from a published literary or dramatic work in acollection which—

(a) is intended for use in educational establishments and is so described in its title,and in any advertisements issued by or on behalf of the publisher, and

(b) consists mainly of material in which no copyright subsists,does not infringe the copyright in the work if the work itself is not intendedfor use in such establishments and the inclusion is accompanied by a sufficientacknowledgement.

(2) Subsection (1) does not authorise the inclusion of more than two excerpts fromcopyright works by the same author in collections published by the same publisherover any period of five years.

(3) In relation to any given passage the reference in subsection (2) to excerpts from worksby the same author—







29



(a) shall be taken to include excerpts from works by him in collaboration withanother, and

(b) if the passage in question is from such a work, shall be taken to includeexcerpts from works by any of the authors, whether alone or in collaborationwith another.

(4) References in this section to the use of a work in an educational establishment are toany use for the educational purposes of such an establishment.

34 Performing, playing or showing work in course of activities of educationalestablishment.

(1) The performance of a literary, dramatic or musical work before an audience consistingof teachers and pupils at an educational establishment and other persons directlyconnected with the activities of the establishment—

(a) by a teacher or pupil in the course of the activities of the establishment, or(b) at the establishment by any person for the purposes of instruction,

is not a public performance for the purposes of infringement of copyright.

(2) The playing or showing of a sound recording, film, broadcast or cable programmebefore such an audience at an educational establishment for the purposes of instructionis not a playing or showing of the work in public for the purposes of infringement ofcopyright.

(3) A person is not for this purpose directly connected with the activities of the educationalestablishment simply because he is the parent of a pupil at the establishment.

35 Recording by educational establishments of broadcasts and cable programmes.

(1) A recording of a broadcast or cable programme, or a copy of such a recording, may bemade by or on behalf of an educational establishment for the educational purposes ofthat establishment without thereby infringing the copyright in the broadcast or cableprogramme, or in any work included in it.

(2) This section does not apply if or to the extent that there is a licensing scheme certifiedfor the purposes of this section under section 143 providing for the grant of licences.

(3) Where a copy which would otherwise be an infringing copy is made in accordancewith this section but is subsequently dealt with, it shall be treated as an infringingcopy for the purposes of that dealing, and if that dealing infringes copyright for allsubsequent purposes.


Modifications etc. (not altering text)C17 Ss. 35, 36 extended by S.I. 1989/1067, art. 2







36 Reprographic copying by educational establishments of passages from publishedworks.

(1) Reprographic copies of passages from published literary, dramatic or musical worksmay, to the extent permitted by this section, be made by or on behalf of an educationalestablishment for the purposes of instruction without infringing any copyright in thework, or in the typographical arrangement.

(2) Not more than one per cent. of any work may be copied by or on behalf of anestablishment by virtue of this section in any quarter, that is, in any period 1st Januaryto 31st March, 1st April to 30th June, 1st July to 30th September or 1st October to31st December.

(3) Copying is not authorised by this section if, or to the extent that, licences are availableauthorising the copying in question and the person making the copies knew or oughtto have been aware of that fact.

(4) The terms of a licence granted to an educational establishment authorising thereprographic copying for the purposes of instruction of passages from publishedliterary, dramatic or musical works are of no effect so far as they purport to restrict theproportion of a work which may be copied (whether on payment or free of charge) toless than that which would be permitted under this section.

(5) Where a copy which would otherwise be an infringing copy is made in accordancewith this section but is subsequently dealt with, it shall be treated as an infringingcopy for the purposes of that dealing, and if that dealing infringes copyright for allsubsequent purposes.


Modifications etc. (not altering text)C18 Ss. 35, 36 extended by S.I. 1989/1067, art. 2


[F1736A Lending of copies by educational establishments

Copyright in a work is not infringed by the lending of copies of the work by aneducational establishment.]


Libraries and archives

37 Libraries and archives: introductory.

(1) In sections 38 to 43 (copying by librarians and archivists)—







31



(a) references in any provision to a prescribed library or archive are to a libraryor archive of a description prescribed for the purposes of that provision byregulations made by the Secretary of State; and

(b) references in any provision to the prescribed conditions are to the conditionsso prescribed.

(2) The regulations may provide that, where a librarian or archivist is required to besatisfied as to any matter before making or supplying a copy of a work—

(a) he may rely on a signed declaration as to that matter by the person requestingthe copy, unless he is aware that it is false in a material particular, and

(b) in such cases as may be prescribed, he shall not make or supply a copy in theabsence of a signed declaration in such form as may be prescribed.

(3) Where a person requesting a copy makes a declaration which is false in a materialparticular and is supplied with a copy which would have been an infringing copy ifmade by him—

(a) he is liable for infringement of copyright as if he had made the copy himself,and

(b) the copy shall be treated as an infringing copy.

(4) The regulations may make different provision for different descriptions of libraries orarchives and for different purposes.

(5) Regulations shall be made by statutory instrument which shall be subject to annulmentin pursuance of a resolution of either House of Parliament.

(6) References in this section, and in sections 38 to 43, to the librarian or archivist includea person acting on his behalf.

38 Copying by librarians: articles in periodicals.

(1) The librarian of a prescribed library may, if the prescribed conditions are compliedwith, make and supply a copy of an article in a periodical without infringing anycopyright in the text, in any illustrations accompanying the text or in the typographicalarrangement.

(2) The prescribed conditions shall include the following—(a) that copies are supplied only to persons satisfying the librarian that they

require them for purposes of research or private study, and will not use themfor any other purpose;

(b) that no person is furnished with more than one copy of the same article or withcopies of more than one article contained in the same issue of a periodical; and

(c) that persons to whom copies are supplied are required to pay for them a sumnot less than the cost (including a contribution to the general expenses of thelibrary) attributable to their production.

39 Copying by librarians: parts of published works.

(1) The librarian of a prescribed library may, if the prescribed conditions are compliedwith, make and supply from a published edition a copy of part of a literary, dramatic ormusical work (other than an article in a periodical) without infringing any copyrightin the work, in any illustrations accompanying the work or in the typographicalarrangement.





(2) The prescribed conditions shall include the following—(a) that copies are supplied only to persons satisfying the librarian that they

require them for purposes of research or private study, and will not use themfor any other purpose;

(b) that no person is furnished with more than one copy of the same material orwith a copy of more than a reasonable proportion of any work; and

(c) that persons to whom copies are supplied are required to pay for them a sumnot less than the cost (including a contribution to the general expenses of thelibrary) attributable to their production.

40 Restriction on production of multiple copies of the same material.

(1) Regulations for the purposes of sections 38 and 39 (copying by librarian of articleor part of published work) shall contain provision to the effect that a copy shall besupplied only to a person satisfying the librarian that his requirement is not related toany similar requirement of another person.

(2) The regulations may provide—(a) that requirements shall be regarded as similar if the requirements are for

copies of substantially the same material at substantially the same time andfor substantially the same purpose; and

(b) that requirements of persons shall be regarded as related if those personsreceive instruction to which the material is relevant at the same time and place.


[F1840A Lending of copies by libraries or archives.

(1) Copyright in a work of any description is not infringed by the lending of a bookby a public library if the book is within the public lending right scheme. For thispurpose—

(a) “the public lending right scheme” means the scheme in force under section 1of the Public Lending Right Act 1979, and

(b) a book is within the public lending right scheme if it is a book within themeaning of the provisions of the scheme relating to eligibility, whether ornot it is in fact eligible.

(2) Copyright in a work is not infringed by the lending of copies of the work by aprescribed library or archive (other than a public library) which is not conducted forprofit.]


Modifications etc. (not altering text)C19 S. 40A(2) modified (1.12.1996) by S.I. 1996/2967, reg. 35 (with Pt. III)








33



41 Copying by librarians: supply of copies to other libraries.

(1) The librarian of a prescribed library may, if the prescribed conditions are compliedwith, make and supply to another prescribed library a copy of—

(a) an article in a periodical, or(b) the whole or part of a published edition of a literary, dramatic or musical work,

without infringing any copyright in the text of the article or, as the case may be, in thework, in any illustrations accompanying it or in the typographical arrangement.

(2) Subsection (1)(b) does not apply if at the time the copy is made the librarian makingit knows, or could by reasonable inquiry ascertain, the name and address of a personentitled to authorise the making of the copy.

42 Copying by librarians or archivists: replacement copies of works.

(1) The librarian or archivist of a prescribed library or archive may, if the prescribedconditions are complied with, make a copy from any item in the permanent collectionof the library or archive—

(a) in order to preserve or replace that item by placing the copy in its permanentcollection in addition to or in place of it, or

(b) in order to replace in the permanent collection of another prescribed libraryor archive an item which has been lost, destroyed or damaged,

without infringing the copyright in any literary, dramatic or musical work, in anyillustrations accompanying such a work or, in the case of a published edition, in thetypographical arrangement.

(2) The prescribed conditions shall include provision for restricting the making of copiesto cases where it is not reasonably practicable to purchase a copy of the item in questionto fulfil that purpose.

43 Copying by librarians or archivists: certain unpublished works.

(1) The librarian or archivist of a prescribed library or archive may, if the prescribedconditions are complied with, make and supply a copy of the whole or part of a literary,dramatic or musical work from a document in the library or archive without infringingany copyright in the work or any illustrations accompanying it.

(2) This section does not apply if—(a) the work had been published before the document was deposited in the library

or archive, or(b) the copyright owner has prohibited copying of the work,

and at the time the copy is made the librarian or archivist making it is, or ought tobe, aware of that fact.

(3) The prescribed conditions shall include the following—(a) that copies are supplied only to persons satisfying the librarian or archivist

that they require them for purposes of research or private study and will notuse them for any other purpose;

(b) that no person is furnished with more than one copy of the same material; and(c) that persons to whom copies are supplied are required to pay for them a sum

not less than the cost (including a contribution to the general expenses of thelibrary or archive) attributable to their production.





44 Copy of work required to be made as condition of export.

If an article of cultural or historical importance or interest cannot lawfully be exportedfrom the United Kingdom unless a copy of it is made and deposited in an appropriatelibrary or archive, it is not an infringement of copyright to make that copy.


[F1944A Legal deposit libraries

(1) Copyright is not infringed by the copying of a work from the internet by a depositlibrary or person acting on its behalf if—

(a) the work is of a description prescribed by regulations under section 10(5)of the 2003 Act,

(b) its publication on the internet, or a person publishing it there, is connectedwith the United Kingdom in a manner so prescribed, and

(c) the copying is done in accordance with any conditions so prescribed.

(2) Copyright is not infringed by the doing of anything in relation to relevant materialpermitted to be done under regulations under section 7 of the 2003 Act.

(3) The Secretary of State may by regulations make provision excluding, in relation toprescribed activities done in relation to relevant material, the application of such ofthe provisions of this Chapter as are prescribed.

(4) Regulations under subsection (3) may in particular make provision prescribingactivities—

(a) done for a prescribed purpose,(b) done by prescribed descriptions of reader,(c) done in relation to prescribed descriptions of relevant material,(d) done other than in accordance with prescribed conditions.

(5) Regulations under this section may make different provision for different purposes.

(6) Regulations under this section shall be made by statutory instrument which shall besubject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section—(a) “the 2003 Act” means the Legal Deposit Libraries Act 2003;(b) “deposit library”, “reader” and “relevant material” have the same meaning

as in section 7 of the 2003 Act;(c) “prescribed” means prescribed by regulations made by the Secretary of

State.]

Textual AmendmentsF19 S. 44A inserted (1.2.2004) by Legal Deposit Libraries Act 2003 (c. 28), ss. 8(1), 16(1) (with s. 16(4));

S.I. 2004/130, art. 2








35



Public administration

45 Parliamentary and judicial proceedings.

(1) Copyright is not infringed by anything done for the purposes of parliamentary orjudicial proceedings.

(2) Copyright is not infringed by anything done for the purposes of reporting suchproceedings; but this shall not be construed as authorising the copying of a work whichis itself a published report of the proceedings.

46 Royal Commissions and statutory inquiries.

(1) Copyright is not infringed by anything done for the purposes of the proceedings of aRoyal Commission or statutory inquiry.

(2) Copyright is not infringed by anything done for the purpose of reporting any suchproceedings held in public; but this shall not be construed as authorising the copyingof a work which is itself a published report of the proceedings.

(3) Copyright in a work is not infringed by the issue to the public of copies of the reportof a Royal Commission or statutory inquiry containing the work or material from it.

(4) In this section—“Royal Commission” includes a Commission appointed for Northern

Ireland by the Secretary of State in pursuance of the prerogative powers ofHer Majesty delegated to him under section 7(2) of the M2Northern IrelandConstitution Act 1973; and

“statutory inquiry” means an inquiry held or investigation conducted inpursuance of a duty imposed or power conferred by or under an enactment.


47 Material open to public inspection or on official register.

(1) Where material is open to public inspection pursuant to a statutory requirement, or ison a statutory register, any copyright in the material as a literary work is not infringedby the copying of so much of the material as contains factual information of anydescription, by or with the authority of the appropriate person, for a purpose whichdoes not involve the issuing of copies to the public.

(2) Where material is open to public inspection pursuant to a statutory requirement,copyright is not infringed by the copying or issuing to the public of copies of thematerial, by or with the authority of the appropriate person, for the purpose of enablingthe material to be inspected at a more convenient time or place or otherwise facilitatingthe exercise of any right for the purpose of which the requirement is imposed.

(3) Where material which is open to public inspection pursuant to a statutory requirement,or which is on a statutory register, contains information about matters of generalscientific, technical, commercial or economic interest, copyright is not infringed by






the copying or issuing to the public of copies of the material, by or with the authorityof the appropriate person, for the purpose of disseminating that information.

(4) The Secretary of State may by order provide that subsection (1), (2) or (3) shall, in suchcases as may be specified in the order, apply only to copies marked in such manneras may be so specified.

(5) The Secretary of State may by order provide that subsections (1) to (3) apply, to suchextent and with such modifications as may be specified in the order—

(a) to material made open to public inspection by—(i) an international organisation specified in the order, or

(ii) a person so specified who has functions in the United Kingdom underan international agreement to which the United Kingdom is party, or

(b) to a register maintained by an international organisation specified in the order,as they apply in relation to material open to public inspection pursuant to a statutoryrequirement or to a statutory register.

(6) In this section—“appropriate person” means the person required to make the material open

to public inspection or, as the case may be, the person maintaining the register;“statutory register” means a register maintained in pursuance of a statutory

requirement; and“statutory requirement” means a requirement imposed by provision made

by or under an enactment.

(7) An order under this section shall be made by statutory instrument which shall besubject to annulment in pursuance of a resolution of either House of Parliament.

Modifications etc. (not altering text)C20 S. 47(1) extended with modifications by S.I. 1989/1098, art. 2C21 S. 47(2) modified by S.I. 1990/1427, art. 2C22 S. 47(2)(3) extended with modifications by S.I. 1989/1098, art. 2C23 S. 47(2)(3) modified by S.I. 1989/1099, art. 2C24 S. 47(6) modified (1.3.2010) by The Scottish Register of Tartans Act 2008 (Consequential

Modifications) Order 2010 (S.I. 2010/180), art. 2(2) (with art. 2(4))

48 Material communicated to the Crown in the course of public business.

(1) This section applies where a literary, dramatic, musical or artistic work has in thecourse of public business been communicated to the Crown for any purpose, by or withthe licence of the copyright owner and a document or other material thing recordingor embodying the work is owned by or in the custody or control of the Crown.

(2) The Crown may, for the purpose for which the work was communicated to it, orany related purpose which could reasonably have been anticipated by the copyrightowner, copy the work and issue copies of the work to the public without infringingany copyright in the work.

(3) The Crown may not copy a work, or issue copies of a work to the public, by virtueof this section if the work has previously been published otherwise than by virtue ofthis section.














37



(4) In subsection (1) “public business” includes any activity carried on by the Crown.

(5) This section has effect subject to any agreement to the contrary between the Crownand the copyright owner.

[F20(6) In this section “the Crown” includes a health service body, as defined in section 60(7)of the National Health Service and Community Care Act 1990, and a National HealthService trust established under Part I of that Act or the National Health Service(Scotland) Act 1978, and the reference in subsection (1) above to public business shallbe construed accordingly.]

Textual AmendmentsF20 S. 48(6) added by National Health Service and Community Care Act 1990 (c. 19, SIF 113:2), s. 60(2),

Sch. 8 para. 3

49 Public records.

Material which is comprised in public records within the meaning of the M3PublicRecords Act 1958, the M4Public Records (Scotland) Act 1937 or the M5Public RecordsAct (Northern Ireland) 1923 which are open to public inspection in pursuance of thatAct, may be copied, and a copy may be supplied to any person, by or with the authorityof any officer appointed under that Act, without infringement of copyright.

Marginal CitationsM3 1958 c. 51.M4 1937 c. 43.M5 1923 c. 20 (N.I.).

50 Acts done under statutory authority.

(1) Where the doing of a particular act is specifically authorised by an Act of Parliament,whenever passed, then, unless the Act provides otherwise, the doing of that act doesnot infringe copyright.

(2) Subsection (1) applies in relation to an enactment contained in Northern Irelandlegislation as it applies in relation to an Act of Parliament.

(3) Nothing in this section shall be construed as excluding any defence of statutoryauthority otherwise available under or by virtue of any enactment.

Modifications etc. (not altering text)C25 S. 50 applied by Freedom of Information Act 2000 (c. 36), s. 80(3) (as added (1.1.2005) by The

Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004 (S.I.2004/3089), art. 3(2))

C26 S. 50(1) modified (1.3.2010) by The Scottish Register of Tartans Act 2008 (ConsequentialModifications) Order 2010 (S.I. 2010/180), art. 2(3) (with art. 2(4))




http://www.legislation.gov.uk/id/ukpga/1990/19/schedule/8/paragraph/3



http://www.legislation.gov.uk/id/apni/1923/20
















[F21Computer programs: lawful users]

Textual AmendmentsF21 Cross-heading and ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8.

F2250A Back up copies.

(1) It is not an infringement of copyright for a lawful user of a copy of a computerprogram to make any back up copy of it which it is necessary for him to have forthe purposes of his lawful use.

(2) For the purposes of this section and sections 50B and 50C a person is a lawful userof a computer program if (whether under a licence to do any acts restricted by thecopyright in the program or otherwise), he has a right to use the program.

(3) Where an act is permitted under this section, it is irrelevant whether or not thereexists any term or condition in an agreement which purports to prohibit or restrictthe act (such terms being, by virtue of section 296A, void).

Textual AmendmentsF22 Ss. 50A-50C inserted (1.1.1993) by S.I. 1992/3233, reg.8.

[F21F2350BDecompilation.

(1) It is not an infringement of copyright for a lawful user of a copy of a computerprogram expressed in a low level language—

(a) to convert it into a version expressed in a higher level language, or(b) incidentally in the course of so converting the program, to copy it,

(that is, to “decompile” it), provided that the conditions in subsection (2) are met.

(2) The conditions are that—(a) it is necessary to decompile the program to obtain the information necessary

to create an independent program which can be operated with the programdecompiled or with another program (“the permitted objective”); and

(b) the information so obtained is not used for any purpose other than thepermitted objective.

(3) In particular, the conditions in subsection (2) are not met if the lawful user—(a) has readily available to him the information necessary to achieve the

permitted objective;(b) does not confine the decompiling to such acts as are necessary to achieve

the permitted objective;(c) supplies the information obtained by the decompiling to any person to whom

it is not necessary to supply it in order to achieve the permitted objective; or






39



(d) uses the information to create a program which is substantially similar inits expression to the program decompiled or to do any act restricted bycopyright.

(4) Where an act is permitted under this section, it is irrelevant whether or not thereexists any term or condition in an agreement which purports to prohibit or restrictthe act (such terms being, by virtue of section 296A, void).



[F2450BA

Observing, studying and testing of computer programs

(1) It is not an infringement of copyright for a lawful user of a copy of a computerprogram to observe, study or test the functioning of the program in order todetermine the ideas and principles which underlie any element of the programif he does so while performing any of the acts of loading, displaying, running,transmitting or storing the program which he is entitled to do.

(2) Where an act is permitted under this section, it is irrelevant whether or not thereexists any term or condition in an agreement which purports to prohibit or restrictthe act (such terms being, by virtue of section 296A, void).]]

Textual AmendmentsF24 S. 50BA inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 15(1) (with regs. 31-40)

F2550C Other acts permitted to lawful users.

(1) It is not an infringement of copyright for a lawful user of a copy of a computerprogram to copy or adapt it, provided that the copying or adapting—

(a) is necessary for his lawful use; and(b) is not prohibited under any term or condition of an agreement regulating the

circumstances in which his use is lawful.

(2) It may, in particular, be necessary for the lawful use of a computer program to copyit or adapt it for the purpose of correcting errors in it.

(3) This section does not apply to any copying or adapting permitted under section 50Aor 50B.















[F26Databases: permitted acts]

Textual AmendmentsF26 S. 50D and crossheading inserted (1.1.1998) by S.I. 1997/3032, reg. 9 (with Pt. IV)

50D [F27 Acts permitted in relation to databases.]

(1) It is not an infringement of copyright in a database for a person who has a right touse the database or any part of the database, (whether under a licence to do any ofthe acts restricted by the copyright in the database or otherwise) to do, in the exerciseof that right, anything which is necessary for the purposes of access to and use of thecontents of the database or of that part of the database.

(2) Where an act which would otherwise infringe copyright in a database is permittedunder this section, it is irrelevant whether or not there exists any term or conditionin any agreement which purports to prohibit or restrict the act (such terms being, byvirtue of section 296B, void).

Textual AmendmentsF27 S. 50D inserted (1.1.1998) by S.I. 1997/3032, reg. 9 (with Pt. IV)

Designs

51 Design documents and models.

(1) It is not an infringement of any copyright in a design document or model recording orembodying a design for anything other than an artistic work or a typeface to make anarticle to the design or to copy an article made to the design.

(2) Nor is it an infringement of the copyright to issue to the public, or include in a film,broadcast or cable programme service, anything the making of which was, by virtueof subsection (1), not an infringement of that copyright.

(3) In this section—“design” means the design of any aspect of the shape or configuration

(whether internal or external) of the whole or part of an article, other thansurface decoration; and

“design document” means any record of a design, whether in the form ofa drawing, a written description, a photograph, data stored in a computer orotherwise.

52 Effect of exploitation of design derived from artistic work.

(1) This section applies where an artistic work has been exploited, by or with the licenceof the copyright owner, by—








41



(a) making by an industrial process articles falling to be treated for the purposesof this Part as copies of the work, and

(b) marketing such articles, in the United Kingdom or elsewhere.

(2) After the end of the period of 25 years from the end of the calendar year in whichsuch articles are first marketed, the work may be copied by making articles of anydescription, or doing anything for the purpose of making articles of any description,and anything may be done in relation to articles so made, without infringing copyrightin the work.

(3) Where only part of an artistic work is exploited as mentioned in subsection (1),subsection (2) applies only in relation to that part.

(4) The Secretary of State may by order make provision—(a) as to the circumstances in which an article, or any description of article, is to

be regarded for the purposes of this section as made by an industrial process;(b) excluding from the operation of this section such articles of a primarily literary

or artistic character as he thinks fit.

(5) An order shall be made by statutory instrument which shall be subject to annulmentin pursuance of a resolution of either House of Parliament.

(6) In this section—(a) references to articles do not include films; and(b) references to the marketing of an article are to its being sold or let for hire or

offered or exposed for sale or hire.

Modifications etc. (not altering text)C27 S. 52 excluded by S.I. 1989/1070, art. 3

53 Things done in reliance on registration of design.

(1) The copyright in an artistic work is not infringed by anything done—(a) in pursuance of an assignment or licence made or granted by a person

registered under the M6Registered Designs Act 1949 as the proprietor of acorresponding design, and

(b) in good faith in reliance on the registration and without notice of anyproceedings for the cancellation of the registration or for rectifying therelevant entry in the register of designs;

and this is so notwithstanding that the person registered as the proprietor was not theproprietor of the design for the purposes of the 1949 Act.

(2) In subsection (1) a “corresponding design”, in relation to an artistic work, means adesign within the meaning of the 1949 Act which if applied to an article would producesomething which would be treated for the purposes of this Part as a copy of the artisticwork.









Typefaces

54 Use of typeface in ordinary course of printing.

(1) It is not an infringement of copyright in an artistic work consisting of the design ofa typeface—

(a) to use the typeface in the ordinary course of typing, composing text,typesetting or printing,

(b) to possess an article for the purpose of such use, or(c) to do anything in relation to material produced by such use;

and this is so notwithstanding that an article is used which is an infringing copy ofthe work.

(2) However, the following provisions of this Part apply in relation to persons making,importing or dealing with articles specifically designed or adapted for producingmaterial in a particular typeface, or possessing such articles for the purpose of dealingwith them, as if the production of material as mentioned in subsection (1) did infringecopyright in the artistic work consisting of the design of the typeface—

section 24 (secondary infringement: making, importing, possessing or dealingwith article for making infringing copy),sections 99 and 100 (order for delivery up and right of seizure),section 107(2) (offence of making or possessing such an article), andsection 108 (order for delivery up in criminal proceedings).

(3) The references in subsection (2) to “dealing with” an article are to selling, letting forhire, or offering or exposing for sale or hire, exhibiting in public, or distributing.

55 Articles for producing material in particular typeface.

(1) This section applies to the copyright in an artistic work consisting of the design of atypeface where articles specifically designed or adapted for producing material in thattypeface have been marketed by or with the licence of the copyright owner.

(2) After the period of 25 years from the end of the calendar year in which the first sucharticles are marketed, the work may be copied by making further such articles, or doinganything for the purpose of making such articles, and anything may be done in relationto articles so made, without infringing copyright in the work.

(3) In subsection (1) “marketed” means sold, let for hire or offered or exposed for sale orhire, in the United Kingdom or elsewhere.

Works in electronic form

56 Transfers of copies of works in electronic form.

(1) This section applies where a copy of a work in electronic form has been purchased onterms which, expressly or impliedly or by virtue of any rule of law, allow the purchaserto copy the work, or to adapt it or make copies of an adaptation, in connection withhis use of it.

(2) If there are no express terms—


43



(a) prohibiting the transfer of the copy by the purchaser, imposing obligationswhich continue after a transfer, prohibiting the assignment of any licence orterminating any licence on a transfer, or

(b) providing for the terms on which a transferee may do the things which thepurchaser was permitted to do,

anything which the purchaser was allowed to do may also be done withoutinfringement of copyright by a transferee; but any copy, adaptation or copy of anadaptation made by the purchaser which is not also transferred shall be treated as aninfringing copy for all purposes after the transfer.

(3) The same applies where the original purchased copy is no longer usable and what istransferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution forreferences in subsection (2) to the purchaser of references to the subsequent transferor.

Miscellaneous: literary, dramatic, musical and artistic works

57 Anonymous or pseudonymous works: acts permitted on assumptions as toexpiry of copyright or death of author.

(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an actdone at a time when, or in pursuance of arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of the author,and

(b) it is reasonable to assume—(i) that copyright has expired, or

(ii) that the author died 50 years or more before the beginning of thecalendar year in which the act is done or the arrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to—(a) a work in which Crown copyright subsists, or(b) a work in which copyright originally vested in an international organisation

by virtue of section 168 and in respect of which an Order under that sectionspecifies a copyright period longer than 50 years.

(3) In relation to a work of joint authorship—(a) the reference in subsection (1) to its being possible to ascertain the identity of

the author shall be construed as a reference to its being possible to ascertainthe identity of any of the authors, and

(b) the reference in subsection (1)(b)(ii) to the author having died shall beconstrued as a reference to all the authors having died.

58 Use of notes or recordings of spoken words in certain cases.

(1) Where a record of spoken words is made, in writing or otherwise, for the purpose—(a) of reporting current events, or(b) of broadcasting or including in a cable programme service the whole or part

of the work,





it is not an infringement of any copyright in the words as a literary work to use therecord or material taken from it (or to copy the record, or any such material, and usethe copy) for that purpose, provided the following conditions are met.

(2) The conditions are that—(a) the record is a direct record of the spoken words and is not taken from a

previous record or from a broadcast or cable programme;(b) the making of the record was not prohibited by the speaker and, where

copyright already subsisted in the work, did not infringe copyright;(c) the use made of the record or material taken from it is not of a kind prohibited

by or on behalf of the speaker or copyright owner before the record was made;and

(d) the use is by or with the authority of a person who is lawfully in possessionof the record.

59 Public reading or recitation.

(1) The reading or recitation in public by one person of a reasonable extract from apublished literary or dramatic work does not infringe any copyright in the work if itis accompanied by a sufficient acknowledgement.

(2) Copyright in a work is not infringed by the making of a sound recording, or thebroadcasting or inclusion in a cable programme service, of a reading or recitationwhich by virtue of subsection (1) does not infringe copyright in the work, provided thatthe recording, broadcast or cable programme consists mainly of material in relation towhich it is not necessary to rely on that subsection.

60 Abstracts of scientific or technical articles.

(1) Where an article on a scientific or technical subject is published in a periodicalaccompanied by an abstract indicating the contents of the article, it is not aninfringement of copyright in the abstract, or in the article, to copy the abstract or issuecopies of it to the public.

(2) This section does not apply if or to the extent that there is a licensing scheme certifiedfor the purposes of this section under section 143 providing for the grant of licences.

61 Recordings of folksongs.

(1) A sound recording of a performance of a song may be made for the purpose ofincluding it in an archive maintained by a designated body without infringing anycopyright in the words as a literary work or in the accompanying musical work,provided the conditions in subsection (2) below are met.

(2) The conditions are that—(a) the words are unpublished and of unknown authorship at the time the

recording is made,(b) the making of the recording does not infringe any other copyright, and(c) its making is not prohibited by any performer.

(3) Copies of a sound recording made in reliance on subsection (1) and included in anarchive maintained by a designated body may, if the prescribed conditions are met,


45



be made and supplied by the archivist without infringing copyright in the recordingor the works included in it.

(4) The prescribed conditions shall include the following—(a) that copies are only supplied to persons satisfying the archivist that they

require them for purposes of research or private study and will not use themfor any other purpose, and

(b) that no person is furnished with more than one copy of the same recording.

(5) In this section—(a) “designated” means designated for the purposes of this section by order of the

Secretary of State, who shall not designate a body unless satisfied that it is notestablished or conducted for profit,

(b) “prescribed” means prescribed for the purposes of this section by order of theSecretary of State, and

(c) references to the archivist include a person acting on his behalf.


62 Representation of certain artistic works on public display.

(1) This section applies to—(a) buildings, and(b) sculptures, models for buildings and works of artistic craftsmanship, if

permanently situated in a public place or in premises open to the public.

(2) The copyright in such a work is not infringed by—(a) making a graphic work representing it,(b) making a photograph or film of it, or(c) broadcasting or including in a cable programme service a visual image of it.

(3) Nor is the copyright infringed by the issue to the public of copies, or the broadcastingor inclusion in a cable programme service, of anything whose making was, by virtueof this section, not an infringement of the copyright.

63 Advertisement of sale of artistic work.

(1) It is not an infringement of copyright in an artistic work to copy it, or to issue copiesto the public, for the purpose of advertising the sale of the work.

(2) Where a copy which would otherwise be an infringing copy is made in accordancewith this section but is subsequently dealt with for any other purpose, it shall be treatedas an infringing copy for the purposes of that dealing, and if that dealing infringescopyright for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, offered or exposed for sale orhire, exhibited in public or distributed.





64 Making of subsequent works by same artist.

Where the author of an artistic work is not the copyright owner, he does not infringethe copyright by copying the work in making another artistic work, provided he doesnot repeat or imitate the main design of the earlier work.

65 Reconstruction of buildings.

Anything done for the purposes of reconstructing a building does not infringe anycopyright—

(a) in the building, or(b) in any drawings or plans in accordance with which the building was, by or

with the licence of the copyright owner, constructed.

Miscellaneous: sound recordings, films and computer programs

66 Rental of sound recordings, films and computer programs.

(1) The Secretary of State may by order provide that in such cases as may be specifiedin the order the rental to the public of copies of sound recordings, films or computerprograms shall be treated as licensed by the copyright owner subject only to thepayment of such reasonable royalty or other payment as may be agreed or determinedin default of agreement by the Copyright Tribunal.

(2) No such order shall apply if, or to the extent that, there is a licensing scheme certifiedfor the purposes of this section under section 143 providing for the grant of licences.

(3) An order may make different provision for different cases and may specify casesby reference to any factor relating to the work, the copies rented, the renter or thecircumstances of the rental.

(4) An order shall be made by statutory instrument; and no order shall be made unlessa draft of it has been laid before and approved by a resolution of each House ofParliament.

(5) Copyright in a computer program is not infringed by the rental of copies to the publicafter the end of the period of 50 years from the end of the calendar year in which copiesof it were first issued to the public in electronic form.

(6) Nothing in this section affects any liability under section 23 (secondary infringement)in respect of the rental of infringing copies.


[F28MISCellaneous: films and sound recordings]

Textual AmendmentsF28 S. 66A and crossheading inserted (1.1.1996) by S.I. 1995/3297, reg. 6(2) (with Pt. III)





47



66A [F29 Films: acts permitted on assumptions as to expiry of copyright, &c.]

(1) Copyright in a film is not infringed by an act done at a time when, or in pursuanceof arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of any ofthe persons referred to in section 13B(2)(a) to (d) (persons by reference towhose life the copyright period is ascertained), and

(b) it is reasonable to assume—(i) that copyright has expired, or

(ii) that the last to die of those persons died 70 years or more beforethe beginning of the calendar year in which the act is done or thearrangements are made.

(2) Subsection (1)(b)(ii) does not apply in relation to—(a) a film in which Crown copyright subsists, or(b) a film in which copyright originally vested in an international organisation

by virtue of section 168 and in respect of which an Order under that sectionspecifies a copyright period longer than 70 years.


67 Playing of sound recordings for purposes of club, society, &c.

(1) It is not an infringement of the copyright in a sound recording to play it as part of theactivities of, or for the benefit of, a club, society or other organisation if the followingconditions are met.

(2) The conditions are—(a) that the organisation is not established or conducted for profit and its main

objects are charitable or are otherwise concerned with the advancement ofreligion, education or social welfare, and

(b) that the proceeds of any charge for admission to the place where therecording is to be heard are applied solely for the purposes of theorganisation.

Miscellaneous: broadcasts and cable programmes

68 Incidental recording for purposes of broadcast or cable programme.

(1) This section applies where by virtue of a licence or assignment of copyright a personis authorised to broadcast or include in a cable programme service—

(a) a literary, dramatic or musical work, or an adaptation of such a work,(b) an artistic work, or(c) a sound recording or film.

(2) He shall by virtue of this section be treated as licensed by the owner of the copyrightin the work to do or authorise any of the following for the purposes of the broadcastor cable programme—








(a) in the case of a literary, dramatic or musical work, or an adaptation of such awork, to make a sound recording or film of the work or adaptation;

(b) in the case of an artistic work, to take a photograph or make a film of the work;(c) in the case of a sound recording or film, to make a copy of it.

(3) That licence is subject to the condition that the recording, film, photograph or copyin question—

(a) shall not be used for any other purpose, and(b) shall be destroyed within 28 days of being first used for broadcasting the work

or, as the case may be, including it in a cable programme service.

(4) A recording, film, photograph or copy made in accordance with this section shall betreated as an infringing copy—

(a) for the purposes of any use in breach of the condition mentioned insubsection (3)(a), and

(b) for all purposes after that condition or the condition mentioned insubsection (3)(b) is broken.

69 Recording for purposes of supervision and control of broadcasts and cableprogrammes.

(1) Copyright is not infringed by the making or use by the British BroadcastingCorporation, for the purpose of maintaining supervision and control over programmesbroadcast by them, of recordings of those programmes.

[F30(2) Copyright is not infringed by anything done in pursuance of—(a) section 11(1), 95(1), 145(4), (5) or (7), 155(3) or 167(1) of the Broadcasting

Act 1990;(b) a condition which, by virtue of section 11(2) or 95(2) of that Act, is included

in a licence granted under Part I or III of that Act; or(c) a direction given under section 109(2) of that Act (power of Radio Authority

to require production of recordings etc.).

(3) Copyright is not infringed by—(a) the use by the Independent Television Commission or the Radio Authority,

in connection with the performance of any of their functions under theBroadcasting Act 1990, of any recording, script or transcript which is providedto them under or by virtue of any provision of that Act; or

(b) the use by the Broadcasting Complaints Commission or the BroadcastingStandards Council, in connection with any complaint made to them under thatAct, of any recording or transcript requested or required to be provided tothem, and so provided, under section 145(4) or (7) or section 155(3) of thatAct.]

Textual AmendmentsF30 S. 69(2)(3) substituted by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(1), Sch. 20 para. 50(1)

http://www.legislation.gov.uk/id/ukpga/1988/48/section/69/2/3





49



70 Recording for purposes of time-shifting.

The making for private and domestic use of a recording of a broadcast or cableprogramme solely for the purpose of enabling it to be viewed or listened to at a moreconvenient time does not infringe any copyright in the broadcast or cable programmeor in any work included in it.

71 Photographs of television broadcasts or cable programmes.

The making for private and domestic use of a photograph of the whole or any part ofan image forming part of a television broadcast or cable programme, or a copy of sucha photograph, does not infringe any copyright in the broadcast or cable programmeor in any film included in it.

72 Free public showing or playing of broadcast or cable programme.

(1) The showing or playing in public of a broadcast or cable programme to an audiencewho have not paid for admission to the place where the broadcast or programme is tobe seen or heard does not infringe any copyright in—

(a) the broadcast or cable programme, or(b) any sound recording or film included in it.

(2) The audience shall be treated as having paid for admission to a place—(a) if they have paid for admission to a place of which that place forms part; or(b) if goods or services are supplied at that place (or a place of which it forms

part)—(i) at prices which are substantially attributable to the facilities afforded

for seeing or hearing the broadcast or programme, or(ii) at prices exceeding those usually charged there and which are partly

attributable to those facilities.

(3) The following shall not be regarded as having paid for admission to a place—(a) persons admitted as residents or inmates of the place;(b) persons admitted as members of a club or society where the payment is only

for membership of the club or society and the provision of facilities for seeingor hearing broadcasts or programmes is only incidental to the main purposesof the club or society.

(4) Where the making of the broadcast or inclusion of the programme in a cableprogramme service was an infringement of the copyright in a sound recording orfilm, the fact that it was heard or seen in public by the reception of the broadcast orprogramme shall be taken into account in assessing the damages for that infringement.

73 Reception and re-transmission of broadcast in cable programme service.

(1) This section applies where a broadcast made from a place in the United Kingdom is,by reception and immediate re-transmission, included in a cable programme service.

(2) The copyright in the broadcast is not infringed—(a)





F31(b) if and to the extent that the broadcast is made for reception in the area in whichthe cable programme service is provided and is not a satellite transmission oran encrypted transmission.

(3) The copyright in any work included in the broadcast is not infringed—(a)

F32(b) if and to the extent that the broadcast is made for reception in the area in whichthe cable programme service is provided;

but where the making of the broadcast was an infringement of the copyright inthe work, the fact that the broadcast was re-transmitted as a programme in a cableprogramme service shall be taken into account in assessing the damages for thatinfringement.

Textual AmendmentsF31 S. 73(2)(a) and the word “or" immediately following it repealed by Broadcasting Act 1990 (c. 42, SIF

96), s. 203(3), Sch. 21F32 S. 73(3)(a) and the word “or" immediately following it repealed by Broadcasting Act 1990 (c. 42, SIF

96), s. 203(3), Sch. 20


F3373A Royalty or other sum payable in pursuance of section 73(4).

(1) An application to settle the royalty or other sum payable in pursuance ofsubsection (4) of section 73 (reception and re-transmission of broadcast in cableprogramme service) may be made to the Copyright Tribunal by the copyright owneror the person making the broadcast.

(2) The Tribunal shall consider the matter and make such order as it may determine tobe reasonable in the circumstances.

(3) Either party may subsequently apply to the Tribunal to vary the order, and theTribunal shall consider the matter and make such order confirming or varying theoriginal order as it may determine to be reasonable in the circumstances.

(4) An application under subsection (3) shall not, except with the special leave of theTribunal, be made within twelve months from the date of the original order or of theorder on a previous application under that subsection.

(5) An order under subsection (3) has effect from the date on which it is made or suchlater date as may be specified by the Tribunal.

Textual AmendmentsF33 Ss. 73, 73A substituted for s. 73 (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 1 (with s. 43(6)); S.I.

1996/2120, art. 4, Sch. 1





http://www.legislation.gov.uk/id/ukpga/1990/42/schedule/21














Copyright, Designs and Patents Act 1988 (c. 48)Part I – CopyrightChapter IV – Moral RightsDocument Generated: 2020-11-25

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74 Provision of sub-titled copies of broadcast or cable programme.

(1) A designated body may, for the purpose of providing people who are deaf or hardof hearing, or physically or mentally handicapped in other ways, with copies whichare sub-titled or otherwise modified for their special needs, make copies of televisionbroadcasts or cable programmes and issue copies to the public, without infringing anycopyright in the broadcasts or cable programmes or works included in them.

(2) A “designated body” means a body designated for the purposes of this section by orderof the Secretary of State, who shall not designate a body unless he is satisfied that itis not established or conducted for profit.


(4) This section does not apply if, or to the extent that, there is a licensing scheme certifiedfor the purposes of this section under section 143 providing for the grant of licences.

75 Recording for archival purposes.

(1) A recording of a broadcast or cable programme of a designated class, or a copy of sucha recording, may be made for the purpose of being placed in an archive maintained bya designated body without thereby infringing any copyright in the broadcast or cableprogramme or in any work included in it.

(2) In subsection (1) “designated” means designated for the purposes of this section byorder of the Secretary of State, who shall not designate a body unless he is satisfiedthat it is not established or conducted for profit.


Adaptations

76 Adaptations.

An act which by virtue of this Chapter may be done without infringing copyright in aliterary, dramatic or musical work does not, where that work is an adaptation, infringeany copyright in the work from which the adaptation was made.

CHAPTER IV

MORAL RIGHTS

Right to be identified as author or director

77 Right to be identified as author or director.

(1) The author of a copyright literary, dramatic, musical or artistic work, and the directorof a copyright film, has the right to be identified as the author or director of the workin the circumstances mentioned in this section; but the right is not infringed unless ithas been asserted in accordance with section 78.


Chapter IV – Moral RightsDocument Generated: 2020-11-25



(2) The author of a literary work (other than words intended to be sung or spoken withmusic) or a dramatic work has the right to be identified whenever—

(a) the work is published commercially, performed in public, broadcast orincluded in a cable programme service; or

(b) copies of a film or sound recording including the work are issued to the public;and that right includes the right to be identified whenever any of those events occurin relation to an adaptation of the work as the author of the work from which theadaptation was made.

(3) The author of a musical work, or a literary work consisting of words intended to besung or spoken with music, has the right to be identified whenever—

(a) the work is published commercially;(b) copies of a sound recording of the work are issued to the public; or(c) a film of which the sound-track includes the work is shown in public or copies

of such a film are issued to the public;and that right includes the right to be identified whenever any of those events occurin relation to an adaptation of the work as the author of the work from which theadaptation was made.

(4) The author of an artistic work has the right to be identified whenever—(a) the work is published commercially or exhibited in public, or a visual image

of it is broadcast or included in a cable programme service;(b) a film including a visual image of the work is shown in public or copies of

such a film are issued to the public; or(c) in the case of a work of architecture in the form of a building or a model for

a building, a sculpture or a work of artistic craftsmanship, copies of a graphicwork representing it, or of a photograph of it, are issued to the public.

(5) The author of a work of architecture in the form of a building also has the rightto be identified on the building as constructed or, where more than one building isconstructed to the design, on the first to be constructed.

(6) The director of a film has the right to be identified whenever the film is shown inpublic, broadcast or included in a cable programme service or copies of the film areissued to the public.

(7) The right of the author or director under this section is—(a) in the case of commercial publication or the issue to the public of copies of a

film or sound recording, to be identified in or on each copy or, if that is notappropriate, in some other manner likely to bring his identity to the notice ofa person acquiring a copy,

(b) in the case of identification on a building, to be identified by appropriatemeans visible to persons entering or approaching the building, and

(c) in any other case, to be identified in a manner likely to bring his identity to theattention of a person seeing or hearing the performance, exhibition, showing,broadcast or cable programme in question;

and the identification must in each case be clear and reasonably prominent.

(8) If the author or director in asserting his right to be identified specifies a pseudonym,initials or some other particular form of identification, that form shall be used;otherwise any reasonable form of identification may be used.


53



(9) This section has effect subject to section 79 (exceptions to right).

78 Requirement that right be asserted.

(1) A person does not infringe the right conferred by section 77 (right to be identified asauthor or director) by doing any of the acts mentioned in that section unless the righthas been asserted in accordance with the following provisions so as to bind him inrelation to that act.

(2) The right may be asserted generally, or in relation to any specified act or descriptionof acts—

(a) on an assignment of copyright in the work, by including in the instrumenteffecting the assignment a statement that the author or director asserts inrelation to that work his right to be identified, or

(b) by instrument in writing signed by the author or director.

(3) The right may also be asserted in relation to the public exhibition of an artistic work—(a) by securing that when the author or other first owner of copyright parts with

possession of the original, or of a copy made by him or under his direction orcontrol, the author is identified on the original or copy, or on a frame, mountor other thing to which it is attached, or

(b) by including in a licence by which the author or other first owner of copyrightauthorises the making of copies of the work a statement signed by or onbehalf of the person granting the licence that the author asserts his right to beidentified in the event of the public exhibition of a copy made in pursuanceof the licence.

(4) The persons bound by an assertion of the right under subsection (2) or (3) are—(a) in the case of an assertion under subsection (2)(a), the assignee and anyone

claiming through him, whether or not he has notice of the assertion;(b) in the case of an assertion under subsection (2)(b), anyone to whose notice

the assertion is brought;(c) in the case of an assertion under subsection (3)(a), anyone into whose hands

that original or copy comes, whether or not the identification is still presentor visible;

(d) in the case of an assertion under subsection (3)(b), the licensee and anyoneinto whose hands a copy made in pursuance of the licence comes, whether ornot he has notice of the assertion.

(5) In an action for infringement of the right the court shall, in considering remedies, takeinto account any delay in asserting the right.

79 Exceptions to right.

(1) The right conferred by section 77 (right to be identified as author or director) is subjectto the following exceptions.

(2) The right does not apply in relation to the following descriptions of work—(a) a computer program;(b) the design of a typeface;(c) any computer-generated work.





(3) The right does not apply to anything done by or with the authority of the copyrightowner where copyright in the work originally vested—

(a) in the author’s employer by virtue of section 11(2) (works produced in courseof employment), or

(b) in the director’s employer by virtue of section 9(2)(a) (person to be treatedas author of film).

(4) The right is not infringed by an act which by virtue of any of the following provisionswould not infringe copyright in the work—

(a) section 30 (fair dealing for certain purposes), so far as it relates to the reportingof current events by means of a sound recording, film, broadcast or cableprogramme;

(b) section 31 (incidental inclusion of work in an artistic work, sound recording,film, broadcast or cable programme);

(c) section 32(3) (examination questions);(d) section 45 (parliamentary and judicial proceedings);(e) section 46(1) or (2) (Royal Commissions and statutory inquiries);(f) section 51 (use of design documents and models);(g) section 52 (effect of exploitation of design derived from artistic work);(h) section 57 (anonymous or pseudonymous works: acts permitted on

assumptions as to expiry of copyright or death of author).

(5) The right does not apply in relation to any work made for the purpose of reportingcurrent events.

(6) The right does not apply in relation to the publication in—(a) a newspaper, magazine or similar periodical, or(b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of suchpublication or made available with the consent of the author for the purposes of suchpublication.

(7) The right does not apply in relation to—(a) a work in which Crown copyright or Parliamentary copyright subsists, or(b) a work in which copyright originally vested in an international organisation

by virtue of section 168,unless the author or director has previously been identified as such in or on publishedcopies of the work.

Right to object to derogatory treatment of work

80 Right to object to derogatory treatment of work.

(1) The author of a copyright literary, dramatic, musical or artistic work, and the directorof a copyright film, has the right in the circumstances mentioned in this section not tohave his work subjected to derogatory treatment.

(2) For the purposes of this section—(a) “treatment” of a work means any addition to, deletion from or alteration to or

adaptation of the work, other than—


55



(i) a translation of a literary or dramatic work, or(ii) an arrangement or transcription of a musical work involving no more

than a change of key or register; and(b) the treatment of a work is derogatory if it amounts to distortion or mutilation

of the work or is otherwise prejudicial to the honour or reputation of the authoror director;

and in the following provisions of this section references to a derogatory treatment ofa work shall be construed accordingly.

(3) In the case of a literary, dramatic or musical work the right is infringed by a personwho—

(a) publishes commercially, performs in public, broadcasts or includes in a cableprogramme service a derogatory treatment of the work; or

(b) issues to the public copies of a film or sound recording of, or including, aderogatory treatment of the work.

(4) In the case of an artistic work the right is infringed by a person who—(a) publishes commercially or exhibits in public a derogatory treatment of the

work, or broadcasts or includes in a cable programme service a visual imageof a derogatory treatment of the work,

(b) shows in public a film including a visual image of a derogatory treatment ofthe work or issues to the public copies of such a film, or

(c) in the case of—(i) a work of architecture in the form of a model for a building,

(ii) a sculpture, or(iii) a work of artistic craftsmanship,

issues to the public copies of a graphic work representing, or of a photographof, a derogatory treatment of the work.

(5) Subsection (4) does not apply to a work of architecture in the form of a building; butwhere the author of such a work is identified on the building and it is the subject ofderogatory treatment he has the right to require the identification to be removed.

(6) In the case of a film, the right is infringed by a person who—(a) shows in public, broadcasts or includes in a cable programme service a

derogatory treatment of the film; or(b) issues to the public copies of a derogatory treatment of the film,

or who, along with the film, plays in public, broadcasts or includes in a cableprogramme service, or issues to the public copies of, a derogatory treatment of thefilm sound-track.

(7) The right conferred by this section extends to the treatment of parts of a work resultingfrom a previous treatment by a person other than the author or director, if those partsare attributed to, or are likely to be regarded as the work of, the author or director.

(8) This section has effect subject to sections 81 and 82 (exceptions to and qualificationsof right).

81 Exceptions to right.

(1) The right conferred by section 80 (right to object to derogatory treatment of work) issubject to the following exceptions.





(2) The right does not apply to a computer program or to any computer-generated work.

(3) The right does not apply in relation to any work made for the purpose of reportingcurrent events.

(4) The right does not apply in relation to the publication in—(a) a newspaper, magazine or similar periodical, or(b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of suchpublication or made available with the consent of the author for the purposes of suchpublication.

Nor does the right apply in relation to any subsequent exploitation elsewhere of sucha work without any modification of the published version.

(5) The right is not infringed by an act which by virtue of section 57 (anonymous orpseudonymous works: acts permitted on assumptions as to expiry of copyright or deathof author) would not infringe copyright.

(6) The right is not infringed by anything done for the purpose of—(a) avoiding the commission of an offence,(b) complying with a duty imposed by or under an enactment, or(c) in the case of the British Broadcasting Corporation, avoiding the inclusion

in a programme broadcast by them of anything which offends against goodtaste or decency or which is likely to encourage or incite to crime or to leadto disorder or to be offensive to public feeling,

provided, where the author or director is identified at the time of the relevant act orhas previously been identified in or on published copies of the work, that there is asufficient disclaimer.

82 Qualification of right in certain cases.

(1) This section applies to—(a) works in which copyright originally vested in the author’s employer by virtue

of section 11(2) (works produced in course of employment) or in the director’semployer by virtue of section 9(2)(a) (person to be treated as author of film),

(b) works in which Crown copyright or Parliamentary copyright subsists, and(c) works in which copyright originally vested in an international organisation by

virtue of section 168.

(2) The right conferred by section 80 (right to object to derogatory treatment of work)does not apply to anything done in relation to such a work by or with the authority ofthe copyright owner unless the author or director—

(a) is identified at the time of the relevant act, or(b) has previously been identified in or on published copies of the work;

and where in such a case the right does apply, it is not infringed if there is a sufficientdisclaimer.


57



83 Infringement of right by possessing or dealing with infringing article.

(1) The right conferred by section 80 (right to object to derogatory treatment of work) isalso infringed by a person who—

(a) possesses in the course of a business, or(b) sells or lets for hire, or offers or exposes for sale or hire, or(c) in the course of a business exhibits in public or distributes, or(d) distributes otherwise than in the course of a business so as to affect

prejudicially the honour or reputation of the author or director,an article which is, and which he knows or has reason to believe is, an infringing article.

(2) An “infringing article” means a work or a copy of a work which—(a) has been subjected to derogatory treatment within the meaning of section 80,

and(b) has been or is likely to be the subject of any of the acts mentioned in that

section in circumstances infringing that right.

False attribution of work

84 False attribution of work.

(1) A person has the right in the circumstances mentioned in this section—(a) not to have a literary, dramatic, musical or artistic work falsely attributed to

him as author, and(b) not to have a film falsely attributed to him as director;

and in this section an “attribution”, in relation to such a work, means a statement(express or implied) as to who is the author or director.

(2) The right is infringed by a person who—(a) issues to the public copies of a work of any of those descriptions in or on

which there is a false attribution, or(b) exhibits in public an artistic work, or a copy of an artistic work, in or on which

there is a false attribution.

(3) The right is also infringed by a person who—(a) in the case of a literary, dramatic or musical work, performs the work in public,

broadcasts it or includes it in a cable programme service as being the workof a person, or

(b) in the case of a film, shows it in public, broadcasts it or includes it in a cableprogramme service as being directed by a person,

knowing or having reason to believe that the attribution is false.

(4) The right is also infringed by the issue to the public or public display of materialcontaining a false attribution in connection with any of the acts mentioned insubsection (2) or (3).

(5) The right is also infringed by a person who in the course of a business—(a) possesses or deals with a copy of a work of any of the descriptions mentioned

in subsection (1) in or on which there is a false attribution, or(b) in the case of an artistic work, possesses or deals with the work itself when

there is a false attribution in or on it,





knowing or having reason to believe that there is such an attribution and that it is false.

(6) In the case of an artistic work the right is also infringed by a person who in the courseof a business—

(a) deals with a work which has been altered after the author parted withpossession of it as being the unaltered work of the author, or

(b) deals with a copy of such a work as being a copy of the unaltered work ofthe author,

knowing or having reason to believe that that is not the case.

(7) References in this section to dealing are to selling or letting for hire, offering orexposing for sale or hire, exhibiting in public, or distributing.

(8) This section applies where, contrary to the fact—(a) a literary, dramatic or musical work is falsely represented as being an

adaptation of the work of a person, or(b) a copy of an artistic work is falsely represented as being a copy made by the

author of the artistic work,as it applies where the work is falsely attributed to a person as author.

Right to privacy of certain photographs and films

85 Right to privacy of certain photographs and films.

(1) A person who for private and domestic purposes commissions the taking of aphotograph or the making of a film has, where copyright subsists in the resulting work,the right not to have—

(a) copies of the work issued to the public,(b) the work exhibited or shown in public, or(c) the work broadcast or included in a cable programme service;

and, except as mentioned in subsection (2), a person who does or authorises the doingof any of those acts infringes that right.

(2) The right is not infringed by an act which by virtue of any of the following provisionswould not infringe copyright in the work—

(a) section 31 (incidental inclusion of work in an artistic work, film, broadcastor cable programme);

(b) section 45 (parliamentary and judicial proceedings);(c) section 46 (Royal Commissions and statutory inquiries);(d) section 50 (acts done under statutory authority);(e) section 57 (anonymous or pseudonymous works: acts permitted on

assumptions as to expiry of copyright or death of author).

Supplementary

86 Duration of rights.

(1) The rights conferred by section 77 (right to be identified as author or director),section 80 (right to object to derogatory treatment of work) and section 85 (right to


59



privacy of certain photographs and films) continue to subsist so long as copyrightsubsists in the work.

(2) The right conferred by section 84 (false attribution) continues to subsist until 20 yearsafter a person’s death.

87 Consent and waiver of rights.

(1) It is not an infringement of any of the rights conferred by this Chapter to do any actto which the person entitled to the right has consented.

(2) Any of those rights may be waived by instrument in writing signed by the persongiving up the right.

(3) A waiver—(a) may relate to a specific work, to works of a specified description or to works

generally, and may relate to existing or future works, and(b) may be conditional or unconditional and may be expressed to be subject to

revocation;and if made in favour of the owner or prospective owner of the copyright in the work orworks to which it relates, it shall be presumed to extend to his licensees and successorsin title unless a contrary intention is expressed.

(4) Nothing in this Chapter shall be construed as excluding the operation of the generallaw of contract or estoppel in relation to an informal waiver or other transaction inrelation to any of the rights mentioned in subsection (1).

88 Application of provisions to joint works.

(1) The right conferred by section 77 (right to be identified as author or director) is, inthe case of a work of joint authorship, a right of each joint author to be identified as ajoint author and must be asserted in accordance with section 78 by each joint authorin relation to himself.

(2) The right conferred by section 80 (right to object to derogatory treatment of work) is,in the case of a work of joint authorship, a right of each joint author and his right issatisfied if he consents to the treatment in question.

(3) A waiver under section 87 of those rights by one joint author does not affect the rightsof the other joint authors.

(4) The right conferred by section 84 (false attribution) is infringed, in the circumstancesmentioned in that section—

(a) by any false statement as to the authorship of a work of joint authorship, and(b) by the false attribution of joint authorship in relation to a work of sole

authorship;and such a false attribution infringes the right of every person to whom authorship ofany description is, whether rightly or wrongly, attributed.

(5) The above provisions also apply (with any necessary adaptations) in relation to a filmwhich was, or is alleged to have been, jointly directed, as they apply to a work whichis, or is alleged to be, a work of joint authorship.


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A film is “jointly directed” if it is made by the collaboration of two or more directorsand the contribution of each director is not distinct from that of the other director ordirectors.

(6) The right conferred by section 85 (right to privacy of certain photographs and films)is, in the case of a work made in pursuance of a joint commission, a right of eachperson who commissioned the making of the work, so that—

(a) the right of each is satisfied if he consents to the act in question, and(b) a waiver under section 87 by one of them does not affect the rights of the

others.

89 Application of provisions to parts of works.

(1) The rights conferred by section 77 (right to be identified as author or director) andsection 85 (right to privacy of certain photographs and films) apply in relation to thewhole or any substantial part of a work.

(2) The rights conferred by section 80 (right to object to derogatory treatment of work)and section 84 (false attribution) apply in relation to the whole or any part of a work.

CHAPTER V

DEALINGS WITH RIGHTS IN COPYRIGHT WORKS

Modifications etc. (not altering text)C28 Pt. I Ch. V (ss. 90-95) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3) (with

Pt. III)

Copyright

90 Assignment and licences.

(1) Copyright is transmissible by assignment, by testamentary disposition or by operationof law, as personal or moveable property.

(2) An assignment or other transmission of copyright may be partial, that is, limited soas to apply—

(a) to one or more, but not all, of the things the copyright owner has the exclusiveright to do;

(b) to part, but not the whole, of the period for which the copyright is to subsist.

(3) An assignment of copyright is not effective unless it is in writing signed by or onbehalf of the assignor.

(4) A licence granted by a copyright owner is binding on every successor in title to hisinterest in the copyright, except a purchaser in good faith for valuable considerationand without notice (actual or constructive) of the licence or a person deriving title fromsuch a purchaser; and references in this Part to doing anything with, or without, thelicence of the copyright owner shall be construed accordingly.

http://www.legislation.gov.uk/id/ukpga/1988/48/part/I/chapter/V




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Modifications etc. (not altering text)C29 Ss. 90-93, 96-98, 101, 102 applied (1.1.1998) by S.I. 1997/3032, reg. 23 (with Pt. IV)

91 Prospective ownership of copyright.

(1) Where by an agreement made in relation to future copyright, and signed by or on behalfof the prospective owner of the copyright, the prospective owner purports to assignthe future copyright (wholly or partially) to another person, then if, on the copyrightcoming into existence, the assignee or another person claiming under him would beentitled as against all other persons to require the copyright to be vested in him, thecopyright shall vest in the assignee or his successor in title by virtue of this subsection.

(2) In this Part—“future copyright” means copyright which will or may come into existence

in respect of a future work or class of works or on the occurrence of a futureevent; and

“prospective owner” shall be construed accordingly, and includes a personwho is prospectively entitled to copyright by virtue of such an agreement asis mentioned in subsection (1).

(3) A licence granted by a prospective owner of copyright is binding on every successorin title to his interest (or prospective interest) in the right, except a purchaser in goodfaith for valuable consideration and without notice (actual or constructive) of thelicence or a person deriving title from such a purchaser; and references in this Part todoing anything with, or without, the licence of the copyright owner shall be construedaccordingly.


92 Exclusive licences.

(1) In this Part an “exclusive licence” means a licence in writing signed by or on behalfof the copyright owner authorising the licensee to the exclusion of all other persons,including the person granting the licence, to exercise a right which would otherwisebe exercisable exclusively by the copyright owner.

(2) The licensee under an exclusive licence has the same rights against a successor in titlewho is bound by the licence as he has against the person granting the licence.


93 Copyright to pass under will with unpublished work.

Where under a bequest (whether specific or general) a person is entitled, beneficiallyor otherwise, to—














(a) an original document or other material thing recording or embodying aliterary, dramatic, musical or artistic work which was not published before thedeath of the testator, or

(b) an original material thing containing a sound recording or film which was notpublished before the death of the testator,

the bequest shall, unless a contrary intention is indicated in the testator’s will or acodicil to it, be construed as including the copyright in the work in so far as the testatorwas the owner of the copyright immediately before his death.



[F3493A Presumption of transfer of rental right in case of film production agreement.

(1) Where an agreement concerning film production is concluded between an author anda film producer, the author shall be presumed, unless the agreement provides to thecontrary, to have transferred to the film producer any rental right in relation to thefilm arising by virtue of the inclusion of a copy of the author’s work in the film.

(2) In this section “author” means an author, or prospective author, of a literary, dramatic,musical or artistic work.

(3) Subsection (1) does not apply to any rental right in relation to the film arising byvirtue of the inclusion in the film of the screenplay, the dialogue or music specificallycreated for and used in the film.

(4) Where this section applies, the absence of signature by or on behalf of the authordoes not exclude the operation of section 91(1) (effect of purported assignment offuture copyright).

(5) The reference in subsection (1) to an agreement concluded between an author and afilm producer includes any agreement having effect between those persons, whethermade by them directly or through intermediaries.

(6) Section 93B (right to equitable remuneration on transfer of rental right) applies wherethere is a presumed transfer by virtue of this section as in the case of an actualtransfer.]

Textual AmendmentsF34 S. 93A inserted (1.12.1996) by S.I. 1996/2967, reg. 12 (with Pt. III)

Modifications etc. (not altering text)C33 S. 93A applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(1) (with Pt. III)










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[F35Right to equitable remuneration where rental right transferred

Textual AmendmentsF35 S. 93B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

F3693B Right to equitable remuneration where rental right transferred.

(1) Where an author to whom this section applies has transferred his rental rightconcerning a sound recording or a film to the producer of the sound recording orfilm, he retains the right to equitable remuneration for the rental.

The authors to whom this section applies are—(a) the author of a literary, dramatic, musical or artistic work, and(b) the principal director of a film.

(2) The right to equitable remuneration under this section may not be assigned by theauthor except to a collecting society for the purpose of enabling it to enforce the righton his behalf.

The right is, however, transmissible by testamentary disposition or by operation oflaw as personal or moveable property; and it may be assigned or further transmittedby any person into whose hands it passes.

(3) Equitable remuneration under this section is payable by the person for the time beingentitled to the rental right, that is, the person to whom the right was transferred orany successor in title of his.

(4) The amount payable by way of equitable remuneration is as agreed by or on behalfof the persons by and to whom it is payable, subject to section 93C (reference ofamount to Copyright Tribunal).

(5) An agreement is of no effect in so far as it purports to exclude or restrict the right toequitable remuneration under this section.

(6) References in this section to the transfer of rental right by one person to anotherinclude any arrangement having that effect, whether made by them directly orthrough intermediaries.

(7) In this section a “collecting society” means a society or other organisation which hasas its main object, or one of its main objects, the exercise of the right to equitableremuneration under this section on behalf of more than one author.

Textual AmendmentsF36 S. 93B inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

Modifications etc. (not altering text)C34 S. 93B applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(2) (with Pt. III)C35 S. 93B restricted (1.12.1996) by S.I. 1996/2967, reg. 33 (with Pt. III)

















F3793C Equitable remuneration: reference of amount to Copyright Tribunal.

(1) In default of agreement as to the amount payable by way of equitable remunerationunder section 93B, the person by or to whom it is payable may apply to the CopyrightTribunal to determine the amount payable.

(2) A person to or by whom equitable remuneration is payable under that section mayalso apply to the Copyright Tribunal—

(a) to vary any agreement as to the amount payable, or(b) to vary any previous determination of the Tribunal as to that matter; but

except with the special leave of the Tribunal no such application may bemade within twelve months from the date of a previous determination.

An order made on an application under this subsection has effect from the date onwhich it is made or such later date as may be specified by the Tribunal.

(3) On an application under this section the Tribunal shall consider the matter and makesuch order as to the method of calculating and paying equitable remuneration asit may determine to be reasonable in the circumstances, taking into account theimportance of the contribution of the author to the film or sound recording.

(4) Remuneration shall not be considered inequitable merely because it was paid by wayof a single payment or at the time of the transfer of the rental right.

(5) An agreement is of no effect in so far as it purports to prevent a person questioning theamount of equitable remuneration or to restrict the powers of the Copyright Tribunalunder this section.]

Textual AmendmentsF37 S. 93C inserted (1.12.1996) by S.I. 1996/2967, reg. 14(1) (with Pt. III)

Moral rights

94 Moral rights not assignable.

The rights conferred by Chapter IV (moral rights) are not assignable.

95 Transmission of moral rights on death.

(1) On the death of a person entitled to the right conferred by section 77 (right toidentification of author or director), section 80 (right to object to derogatory treatmentof work) or section 85 (right to privacy of certain photographs and films)—

(a) the right passes to such person as he may by testamentary dispositionspecifically direct,

(b) if there is no such direction but the copyright in the work in question forms partof his estate, the right passes to the person to whom the copyright passes, and

(c) if or to the extent that the right does not pass under paragraph (a) or (b) it isexercisable by his personal representatives.

(2) Where copyright forming part of a person’s estate passes in part to one person and inpart to another, as for example where a bequest is limited so as to apply—




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(a) to one or more, but not all, of the things the copyright owner has the exclusiveright to do or authorise, or

(b) to part, but not the whole, of the period for which the copyright is to subsist,any right which passes with the copyright by virtue of subsection (1) iscorrespondingly divided.

(3) Where by virtue of subsection (1)(a) or (b) a right becomes exercisable by more thanone person—

(a) it may, in the case of the right conferred by section 77 (right to identificationof author or director), be asserted by any of them;

(b) it is, in the case of the right conferred by section 80 (right to object toderogatory treatment of work) or section 85 (right to privacy of certainphotographs and films), a right exercisable by each of them and is satisfied inrelation to any of them if he consents to the treatment or act in question; and

(c) any waiver of the right in accordance with section 87 by one of them does notaffect the rights of the others.

(4) A consent or waiver previously given or made binds any person to whom a right passesby virtue of subsection (1).

(5) Any infringement after a person’s death of the right conferred by section 84 (falseattribution) is actionable by his personal representatives.

(6) Any damages recovered by personal representatives by virtue of this section in respectof an infringement after a person’s death shall devolve as part of his estate as if theright of action had subsisted and been vested in him immediately before his death.

CHAPTER VI

REMEDIES FOR INFRINGEMENT

Modifications etc. (not altering text)C36 Pt. I Ch. VI (ss. 96-115) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17 (with Pt.

III)

Rights and remedies of copyright owner

96 Infringement actionable by copyright owner.

(1) An infringement of copyright is actionable by the copyright owner.

(2) In an action for infringement of copyright all such relief by way of damages,injunctions, accounts or otherwise is available to the plaintiff as is available in respectof the infringement of any other property right.

(3) This section has effect subject to the following provisions of this Chapter.






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97 Provisions as to damages in infringement action.

(1) Where in an action for infringement of copyright it is shown that at the time of theinfringement the defendant did not know, and had no reason to believe, that copyrightsubsisted in the work to which the action relates, the plaintiff is not entitled to damagesagainst him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of copyright having regard to all thecircumstances, and in particular to—

(a) the flagrancy of the infringement, and(b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.



[F3897A Injunctions against service providers

(1) The High Court (in Scotland, the Court of Session) shall have power to grantan injunction against a service provider, where that service provider has actualknowledge of another person using their service to infringe copyright.

(2) In determining whether a service provider has actual knowledge for the purposeof this section, a court shall take into account all matters which appear to it in theparticular circumstances to be relevant and, amongst other things, shall have regardto—

(a) whether a service provider has received a notice through a means of contactmade available in accordance with regulation 6(1)(c) of the ElectronicCommerce (EC Directive) Regulations 2002 (SI 2002/2013); and

(b) the extent to which any notice includes—(i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.

(3) In this section “service provider” has the meaning given to it by regulation 2 of theElectronic Commerce (EC Directive) Regulations 2002.]

Textual AmendmentsF38 S. 97A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I. 2003/2498),

reg. 27(1) (with regs. 31-40)











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98 Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of copyright in respect of which a licence isavailable as of right under section 144 (powers exercisable in consequence of reportof Monopolies and Mergers Commission) the defendant undertakes to take a licenceon such terms as may be agreed or, in default of agreement, settled by the CopyrightTribunal under that section—

(a) no injunction shall be granted against him,(b) no order for delivery up shall be made under section 99, and(c) the amount recoverable against him by way of damages or on an account of

profits shall not exceed double the amount which would have been payableby him as licensee if such a licence on those terms had been granted beforethe earliest infringement.

(2) An undertaking may be given at any time before final order in the proceedings, withoutany admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringementcommitted before licences of right were available.


99 Order for delivery up.

(1) Where a person—(a) has an infringing copy of a work in his possession, custody or control in the

course of a business, or(b) has in his possession, custody or control an article specifically designed or

adapted for making copies of a particular copyright work, knowing or havingreason to believe that it has been or is to be used to make infringing copies,

the owner of the copyright in the work may apply to the court for an order that theinfringing copy or article be delivered up to him or to such other person as the courtmay direct.

(2) An application shall not be made after the end of the period specified in section 113(period after which remedy of delivery up not available); and no order shall be madeunless the court also makes, or it appears to the court that there are grounds for making,an order under section 114 (order as to disposal of infringing copy or other article).

(3) A person to whom an infringing copy or other article is delivered up in pursuanceof an order under this section shall, if an order under section 114 is not made, retainit pending the making of an order, or the decision not to make an order, under thatsection.

(4) Nothing in this section affects any other power of the court.

100 Right to seize infringing copies and other articles.

(1) An infringing copy of a work which is found exposed or otherwise immediatelyavailable for sale or hire, and in respect of which the copyright owner would be entitled












to apply for an order under section 99, may be seized and detained by him or a personauthorised by him.

The right to seize and detain is exercisable subject to the following conditions and issubject to any decision of the court under section 114.

(2) Before anything is seized under this section notice of the time and place of theproposed seizure must be given to a local police station.

(3) A person may for the purpose of exercising the right conferred by this section enterpremises to which the public have access but may not seize anything in the possession,custody or control of a person at a permanent or regular place of business of his, andmay not use any force.

(4) At the time when anything is seized under this section there shall be left at theplace where it was seized a notice in the prescribed form containing the prescribedparticulars as to the person by whom or on whose authority the seizure is made andthe grounds on which it is made.

(5) In this section—

“premises” includes land, buildings, moveable structures, vehicles, vessels, aircraftand hovercraft; and “prescribed” means prescribed by order of the Secretary of State.

(6) An order of the Secretary of State under this section shall be made by statutoryinstrument which shall be subject to annulment in pursuance of a resolution of eitherHouse of Parliament.

Rights and remedies of exclusive licensee

101 Rights and remedies of exclusive licensee.

(1) An exclusive licensee has, except against the copyright owner, the same rights andremedies in respect of matters occurring after the grant of the licence as if the licencehad been an assignment.

(2) His rights and remedies are concurrent with those of the copyright owner; andreferences in the relevant provisions of this Part to the copyright owner shall beconstrued accordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant mayavail himself of any defence which would have been available to him if the action hadbeen brought by the copyright owner.



[F39101ACertain infringements actionable by a non-exclusive licensee

(1) A non-exclusive licensee may bring an action for infringement of copyright if—





69



(a) the infringing act was directly connected to a prior licensed act of thelicensee; and

(b) the licence—(i) is in writing and is signed by or on behalf of the copyright owner;

and(ii) expressly grants the non-exclusive licensee a right of action under

this section.

(2) In an action brought under this section, the non-exclusive licensee shall have thesame rights and remedies available to him as the copyright owner would have hadif he had brought the action.

(3) The rights granted under this section are concurrent with those of the copyright ownerand references in the relevant provisions of this Part to the copyright owner shall beconstrued accordingly.

(4) In an action brought by a non-exclusive licensee by virtue of this section a defendantmay avail himself of any defence which would have been available to him if theaction had been brought by the copyright owner.

(5) Subsections (1) to (4) of section 102 shall apply to a non-exclusive licensee who hasa right of action by virtue of this section as it applies to an exclusive licensee.

(6) In this section a “non-exclusive licensee” means the holder of a licence authorisingthe licensee to exercise a right which remains exercisable by the copyright owner.]

Textual AmendmentsF39 S. 101A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 28 (with regs. 31-40)

102 Exercise of concurrent rights.

(1) Where an action for infringement of copyright brought by the copyright owner or anexclusive licensee relates (wholly or partly) to an infringement in respect of whichthey have concurrent rights of action, the copyright owner or, as the case may be, theexclusive licensee may not, without the leave of the court, proceed with the actionunless the other is either joined as a plaintiff or added as a defendant.

(2) A copyright owner or exclusive licensee who is added as a defendant in pursuanceof subsection (1) is not liable for any costs in the action unless he takes part in theproceedings.

(3) The above provisions do not affect the granting of interlocutory relief on an applicationby a copyright owner or exclusive licensee alone.

(4) Where an action for infringement of copyright is brought which relates (wholly orpartly) to an infringement in respect of which the copyright owner and an exclusivelicensee have or had concurrent rights of action—

(a) the court shall in assessing damages take into account—(i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of themin respect of the infringement;









(b) no account of profits shall be directed if an award of damages has been made,or an account of profits has been directed, in favour of the other of them inrespect of the infringement; and

(c) the court shall if an account of profits is directed apportion the profits betweenthem as the court considers just, subject to any agreement between them;

and these provisions apply whether or not the copyright owner and the exclusivelicensee are both parties to the action.

(5) The copyright owner shall notify any exclusive licensee having concurrent rightsbefore applying for an order under section 99 (order for delivery up) or exercising theright conferred by section 100 (right of seizure); and the court may on the applicationof the licensee make such order under section 99 or, as the case may be, prohibiting orpermitting the exercise by the copyright owner of the right conferred by section 100,as it thinks fit having regard to the terms of the licence.

Remedies for infringement of moral rights

103 Remedies for infringement of moral rights.

(1) An infringement of a right conferred by Chapter IV (moral rights) is actionable as abreach of statutory duty owed to the person entitled to the right.

(2) In proceedings for infringement of the right conferred by section 80 (right to object toderogatory treatment of work) the court may, if it thinks it is an adequate remedy inthe circumstances, grant an injunction on terms prohibiting the doing of any act unlessa disclaimer is made, in such terms and in such manner as may be approved by thecourt, dissociating the author or director from the treatment of the work.

Presumptions

104 Presumptions relevant to literary, dramatic, musical and artistic works.

(1) The following presumptions apply in proceedings brought by virtue of this Chapterwith respect to a literary, dramatic, musical or artistic work.

(2) Where a name purporting to be that of the author appeared on copies of the work aspublished or on the work when it was made, the person whose name appeared shallbe presumed, until the contrary is proved—

(a) to be the author of the work;(b) to have made it in circumstances not falling within section 11(2), 163,

165 or 168 (works produced in course of employment, Crown copyright,Parliamentary copyright or copyright of certain international organisations).

(3) In the case of a work alleged to be a work of joint authorship, subsection (2) appliesin relation to each person alleged to be one of the authors.

(4) Where no name purporting to be that of the author appeared as mentioned insubsection (2) but—

(a) the work qualifies for copyright protection by virtue of section 155(qualification by reference to country of first publication), and

(b) a name purporting to be that of the publisher appeared on copies of the workas first published,


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the person whose name appeared shall be presumed, until the contrary is proved, tohave been the owner of the copyright at the time of publication.

(5) If the author of the work is dead or the identity of the author cannot be ascertained byreasonable inquiry, it shall be presumed, in the absence of evidence to the contrary—

(a) that the work is an original work, and(b) that the plaintiff’s allegations as to what was the first publication of the work

and as to the country of first publication are correct.

105 Presumptions relevant to sound recordings and films.

(1) In proceedings brought by virtue of this Chapter with respect to a sound recording,where copies of the recording as issued to the public bear a label or other markstating—

(a) that a named person was the owner of copyright in the recording at the dateof issue of the copies, or

(b) that the recording was first published in a specified year or in a specifiedcountry,

the label or mark shall be admissible as evidence of the facts stated and shall bepresumed to be correct until the contrary is proved.

(2) In proceedings brought by virtue of this Chapter with respect to a film, where copiesof the film as issued to the public bear a statement—

(a) that a named person was the author or director of the film,(b) that a named person was the owner of copyright in the film at the date of issue

of the copies, or(c) that the film was first published in a specified year or in a specified country,

the statement shall be admissible as evidence of the facts stated and shall be presumedto be correct until the contrary is proved.

(3) In proceedings brought by virtue of this Chapter with respect to a computer program,where copies of the program are issued to the public in electronic form bearing astatement—

(a) that a named person was the owner of copyright in the program at the dateof issue of the copies, or

(b) that the program was first published in a specified country or that copies of itwere first issued to the public in electronic form in a specified year,

the statement shall be admissible as evidence of the facts stated and shall be presumedto be correct until the contrary is proved.

(4) The above presumptions apply equally in proceedings relating to an infringementalleged to have occurred before the date on which the copies were issued to the public.

(5) In proceedings brought by virtue of this Chapter with respect to a film, where thefilm as shown in public, broadcast or included in a cable programme service bears astatement—

(a) that a named person was the author or director of the film, or(b) that a named person was the owner of copyright in the film immediately after

it was made,the statement shall be admissible as evidence of the facts stated and shall be presumedto be correct until the contrary is proved.





This presumption applies equally in proceedings relating to an infringement allegedto have occurred before the date on which the film was shown in public, broadcast orincluded in a cable programme service.

106 Presumptions relevant to works subject to Crown copyright.

In proceedings brought by virtue of this Chapter with respect to a literary, dramaticor musical work in which Crown copyright subsists, where there appears on printedcopies of the work a statement of the year in which the work was first publishedcommercially, that statement shall be admissible as evidence of the fact stated andshall be presumed to be correct in the absence of evidence to the contrary.

Offences

107 Criminal liability for making or dealing with infringing articles, &c.

(1) A person commits an offence who, without the licence of the copyright owner—(a) makes for sale or hire, or(b) imports into the United Kingdom otherwise than for his private and domestic

use, or(c) possesses in the course of a business with a view to committing any act

infringing the copyright, or(d) in the course of a business —

(i) sells or lets for hire, or(ii) offers or exposes for sale or hire, or

(iii) exhibits in public, or(iv) distributes, or

(e) distributes otherwise than in the course of a business to such an extent as toaffect prejudicially the owner of the copyright,

an article which is, and which he knows or has reason to believe is, an infringing copyof a copyright work.

(2) A person commits an offence who—(a) makes an article specifically designed or adapted for making copies of a

particular copyright work, or(b) has such an article in his possession,

knowing or having reason to believe that it is to be used to make infringing copies forsale or hire or for use in the course of a business.

(3) Where copyright is infringed (otherwise than by reception of a broadcast or cableprogramme)—

(a) by the public performance of a literary, dramatic or musical work, or(b) by the playing or showing in public of a sound recording or film,

any person who caused the work to be so performed, played or shown is guilty of anoffence if he knew or had reason to believe that copyright would be infringed.

(4) A person guilty of an offence under subsection (1)(a), (b), (d)(iv) or (e) is liable—(a) on summary conviction to imprisonment for a term not exceeding six months

or a fine not exceeding the statutory maximum, or both;


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(b) on conviction on indictment to a fine or imprisonment for a term not exceedingtwo years, or both.

(5) A person guilty of any other offence under this section is liable on summary convictionto imprisonment for a term not exceeding six months or a fine not exceeding level 5on the standard scale, or both.

(6) Sections 104 to 106 (presumptions as to various matters connected with copyright) donot apply to proceedings for an offence under this section; but without prejudice totheir application in proceedings for an order under section 108 below.


[F40107AEnforcement by local weights and measures authority.

(1) It is the duty of every local weights and measures authority to enforce within theirarea the provisions of section 107.

(2) The following provisions of the M7Trade Descriptions Act 1968 apply in relation tothe enforcement of that section by such an authority as in relation to the enforcementof that Act—

section 27 (power to make test purchases),

section 28 (power to enter premises and inspect and seize goods and documents),

section 29 (obstruction of authorised officers), and

section 33 (compensation for loss, &c. of goods seized).

(3) Subsection (1) above does not apply in relation to the enforcement of section 107 inNorthern Ireland, but it is the duty of the Department of Economic Development toenforce that section in Northern Ireland.

For that purpose the provisions of the Trade Descriptions Act 1968 specified insubsection (2) apply as if for the references to a local weights and measuresauthority and any officer of such an authority there were substituted references tothat Department and any of its officers.

(4) Any enactment which authorises the disclosure of information for the purpose offacilitating the enforcement of the Trade Descriptions Act 1968 shall apply as ifsection 107 were contained in that Act and as if the functions of any person in relationto the enforcement of that section were functions under that Act.

(5) Nothing in this section shall be construed as authorising a local weights and measuresauthority to bring proceedings in Scotland for an offence.]

Textual AmendmentsF40 S. 107A inserted (6.4.2007) by 1994 c. 33, ss. 165(2), 172(2); S.I. 2007/621, art. 2












108 Order for delivery up in criminal proceedings.

(1) The court before which proceedings are brought against a person for an offence undersection 107 may, if satisfied that at the time of his arrest or charge—

(a) he had in his possession, custody or control in the course of a business aninfringing copy of a copyright work, or

(b) he had in his possession, custody or control an article specifically designed oradapted for making copies of a particular copyright work, knowing or havingreason to believe that it had been or was to be used to make infringing copies,

order that the infringing copy or article be delivered up to the copyright owner or tosuch other person as the court may direct.

(2) For this purpose a person shall be treated as charged with an offence—(a) in England, Wales and Northern Ireland, when he is orally charged or is served

with a summons or indictment;(b) in Scotland, when he is cautioned, charged or served with a complaint or

indictment.

(3) An order may be made by the court of its own motion or on the application of theprosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be madewhether or not the person is convicted of the offence, but shall not be made—

(a) after the end of the period specified in section 113 (period after which remedyof delivery up not available), or

(b) if it appears to the court unlikely that any order will be made under section 114(order as to disposal of infringing copy or other article).

(4) An appeal lies from an order made under this section by a magistrates’ court—(a) in England and Wales, to the Crown Court, and(b) in Northern Ireland, to the county court;

and in Scotland, where an order has been made under this section, the person fromwhose possession, custody or control the infringing copy or article has been removedmay, without prejudice to any other form of appeal under any rule of law, appealagainst that order in the same manner as against sentence.

(5) A person to whom an infringing copy or other article is delivered up in pursuance of anorder under this section shall retain it pending the making of an order, or the decisionnot to make an order, undersection 114.

(6) Nothing in this section affects the powers of the court under section 43 of theM8Powers of Criminal Courts Act 1973, section 223 or 436 of the M9Criminal Procedure(Scotland) Act 1975 or Article 7 of the M10Criminal Justice (Northern Ireland) Order1980 (general provisions as to forfeiture in criminal proceedings).

Marginal CitationsM8 1973 c. 62.M9 1975 c. 21.M10 S.I. 1980/704(N.I. 6).





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109 Search warrants.

(1) Where a justice of the peace (in Scotland, a sheriff or justice of the peace) is satisfiedby information on oath given by a constable (in Scotland, by evidence on oath) thatthere are reasonable grounds for believing—

(a) that an offence under section 107(1)(a), (b), (d)(iv) or (e) has been or is aboutto be committed in any premises, and

(b) that evidence that such an offence has been or is about to be committed is inthose premises,

he may issue a warrant authorising a constable to enter and search the premises, usingsuch reasonable force as is necessary.

(2) The power conferred by subsection (1) does not, in England and Wales, extend toauthorising a search for material of the kinds mentioned in section 9(2) of the M11Policeand Criminal Evidence Act 1984 (certain classes of personal or confidential material).

(3) A warrant under this section—(a) may authorise persons to accompany any constable executing the warrant, and(b) remains in force for 28 days from the date of its issue.

(4) In executing a warrant issued under this section a constable may seize an article if hereasonably believes that it is evidence that any offence under section 107(1) has beenor is about to be committed.

(5) In this section “premises” includes land, buildings, moveable structures, vehicles,vessels, aircraft and hovercraft.


110 Offence by body corporate: liability of officers.

(1) Where an offence under section 107 committed by a body corporate is proved to havebeen committed with the consent or connivance of a director, manager, secretary orother similar officer of the body, or a person purporting to act in any such capacity,he as well as the body corporate is guilty of the offence and liable to be proceededagainst and punished accordingly.

(2) In relation to a body corporate whose affairs are managed by its members “director”means a member of the body corporate.

Provision for preventing importation of infringing copies

111 Infringing copies may be treated as prohibited goods.

(1) The owner of the copyright in a published literary, dramatic or musical work may givenotice in writing to the Commissioners of Customs and Excise—

(a) that he is the owner of the copyright in the work, and(b) that he requests the Commissioners, for a period specified in the notice, to treat

as prohibited goods printed copies of the work which are infringing copies.






(2) The period specified in a notice under subsection (1) shall not exceed five years andshall not extend beyond the period for which copyright is to subsist.

(3) The owner of the copyright in a sound recording or film may give notice in writing tothe Commissioners of Customs and Excise—

(a) that he is the owner of the copyright in the work,(b) that infringing copies of the work are expected to arrive in the United

Kingdom at a time and a place specified in the notice, and(c) that he requests the Commissioners to treat the copies as prohibited goods.

(4) When a notice is in force under this section the importation of goods to whichthe notice relates, otherwise than by a person for his private and domestic use, isprohibited; but a person is not by reason of the prohibition liable to any penalty otherthan forfeiture of the goods.

112 Power of Commissioners of Customs and Excise to make regulations.

(1) The Commissioners of Customs and Excise may make regulations prescribing theform in which notice is to be given under section 111 and requiring a person givingnotice—

(a) to furnish the Commissioners with such evidence as may be specified in theregulations, either on giving notice or when the goods are imported, or at boththose times, and

(b) to comply with such other conditions as may be specified in the regulations.

(2) The regulations may, in particular, require a person giving such a notice—(a) to pay such fees in respect of the notice as may be specified by the regulations;(b) to give such security as may be so specified in respect of any liability or

expense which the Commissioners may incur in consequence of the notice byreason of the detention of any article or anything done to an article detained;

(c) to indemnify the Commissioners against any such liability or expense,whether security has been given or not.

(3) The regulations may make different provision as respects different classes of case towhich they apply and may include such incidental and supplementary provisions asthe Commissioners consider expedient.


(5) Section 17 of the M12Customs and Excise Management Act 1979 (general provisionsas to Commissioners’ receipts) applies to fees paid in pursuance of regulations underthis section as to receipts under the enactments relating to customs and excise.




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Supplementary

113 Period after which remedy of delivery up not available.

(1) An application for an order under section 99 (order for delivery up in civil proceedings)may not be made after the end of the period of six years from the date on which theinfringing copy or article in question was made, subject to the following provisions.

(2) If during the whole or any part of that period the copyright owner—(a) is under a disability, or(b) is prevented by fraud or concealment from discovering the facts entitling him

to apply for an order,an application may be made at any time before the end of the period of six years fromthe date on which he ceased to be under a disability or, as the case may be, could withreasonable diligence have discovered those facts.

(3) In subsection (2) “disability”—(a) in England and Wales, has the same meaning as in the M13Limitation Act 1980;(b) in Scotland, means legal disability within the meaning of the M14Prescription

and Limitation (Scotland) Act 1973;(c) in Northern Ireland, has the same meaning as in the M15Statute of Limitations

(Northern Ireland) 1958.

(4) An order under section 108 (order for delivery up in criminal proceedings) shall not,in any case, be made after the end of the period of six years from the date on whichthe infringing copy or article in question was made.


114 Order as to disposal of infringing copy or other article.

(1) An application may be made to the court for an order that an infringing copy or otherarticle delivered up in pursuance of an order under section 99 or 108, or seized anddetained in pursuance of the right conferred by section 100, shall be—

(a) forfeited to the copyright owner, or(b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whetherother remedies available in an action for infringement of copyright would be adequateto compensate the copyright owner and to protect his interests.

(3) Provision shall be made by rules of court as to the service of notice on persons havingan interest in the copy or other articles, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or not hewas served with notice, and

(b) to appeal against any order made, whether or not he appeared;








and an order shall not take effect until the end of the period within which notice of anappeal may be given or, if before the end of that period notice of appeal is duly given,until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in a copy or other article, the courtshall make such order as it thinks just and may (in particular) direct that the article besold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the personin whose possession, custody or control the copy or other article was before beingdelivered up or seized is entitled to its return.

(6) References in this section to a person having an interest in a copy or other articleinclude any person in whose favour an order could be made in respect of it underthis section or under section 204 or 231 of this Act or section 58C of the M16TradeMarks Act 1938 (which make similar provision in relation to infringement of rightsin performances, design right and trade marks).



[F41114AForfeiture of infringing copies, etc.: England and Wales or Northern Ireland

(1) In England and Wales or Northern Ireland where there have come into the possessionof any person in connection with the investigation or prosecution of a relevantoffence—

(a) infringing copies of a copyright work, or(b) articles specifically designed or adapted for making copies of a particular

copyright work,that person may apply under this section for an order for the forfeiture of theinfringing copies or articles.

(2) For the purposes of this section “relevant offence” means—(a) an offence under section 107(1) or (2) (criminal liability for making or

dealing with infringing articles, etc.),(b) an offence under the Trade Descriptions Act 1968 (c. 29), or(c) an offence involving dishonesty or deception.

(3) An application under this section may be made—(a) where proceedings have been brought in any court for a relevant offence

relating to some or all of the infringing copies or articles, to that court, or(b) where no application for the forfeiture of the infringing copies or articles has

been made under paragraph (a), by way of complaint to a magistrates’ court.

(4) On an application under this section, the court shall make an order for the forfeitureof any infringing copies or articles only if it is satisfied that a relevant offence hasbeen committed in relation to the infringing copies or articles.



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(5) A court may infer for the purposes of this section that such an offence has beencommitted in relation to any infringing copies or articles if it is satisfied that suchan offence has been committed in relation to infringing copies or articles which arerepresentative of the infringing copies or articles in question (whether by reason ofbeing of the same design or part of the same consignment or batch or otherwise).

(6) Any person aggrieved by an order made under this section by a magistrates’ court,or by a decision of such a court not to make such an order, may appeal against thatorder or decision—

(a) in England and Wales, to the Crown Court, or(b) in Northern Ireland, to the county court.

(7) An order under this section may contain such provision as appears to the court tobe appropriate for delaying the coming into force of the order pending the makingand determination of any appeal (including any application under section 111 ofthe Magistrates’ Courts Act 1980 (c. 43) or Article 146 of the Magistrates’ Courts(Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (statement of case)).

(8) Subject to subsection (9), where any infringing copies or articles are forfeited underthis section they shall be destroyed in accordance with such directions as the courtmay give.

(9) On making an order under this section the court may direct that the infringing copiesor articles to which the order relates shall (instead of being destroyed) be forfeitedto the owner of the copyright in question or dealt with in such other way as the courtconsiders appropriate.]

Textual AmendmentsF41 Ss. 114A, 114B inserted (20.11.2002) by 2002 c. 25, s. 3; S.I. 2002/2749, art. 2


F42114B Forfeiture of infringing copies, etc.: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture of any—(a) infringing copies of a copyright work, or(b) articles specifically designed or adapted for making copies of a particular

copyright work.

(2) An order under this section may be made—(a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or(b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

(3) On an application under subsection (2)(a), the court shall make an order for theforfeiture of any infringing copies or articles only if it is satisfied that a relevantoffence has been committed in relation to the infringing copies or articles.









(4) The court may infer for the purposes of this section that such an offence has beencommitted in relation to any infringing copies or articles if it is satisfied that suchan offence has been committed in relation to infringing copies or articles which arerepresentative of the infringing copies or articles in question (whether by reason ofbeing of the same design or part of the same consignment or batch or otherwise).

(5) The procurator-fiscal making the application under subsection (2)(a) shall serve onany person appearing to him to be the owner of, or otherwise to have an interestin, the infringing copies or articles to which the application relates a copy of theapplication, together with a notice giving him the opportunity to appear at the hearingof the application to show cause why the infringing copies or articles should not beforfeited.

(6) Service under subsection (5) shall be carried out, and such service may be proved,in the manner specified for citation of an accused in summary proceedings under theCriminal Procedure (Scotland) Act 1995.

(7) Any person upon whom notice is served under subsection (5) and any other personclaiming to be the owner of, or otherwise to have an interest in, infringing copies orarticles to which an application under this section relates shall be entitled to appearat the hearing of the application to show cause why the infringing copies or articlesshould not be forfeited.

(8) The court shall not make an order following an application under subsection (2)(a)—(a) if any person on whom notice is served under subsection (5) does not appear,

unless service of the notice on that person is proved, or(b) if no notice under subsection (5) has been served, unless the court is satisfied

that in the circumstances it was reasonable not to serve such notice.

(9) Where an order for the forfeiture of any infringing copies or articles is madefollowing an application under subsection (2)(a), any person who appeared, or wasentitled to appear, to show cause why infringing copies or articles should not beforfeited may, within 21 days of the making of the order, appeal to the High Courtby Bill of Suspension.

(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 (c. 46) shallapply to an appeal under subsection (9) as it applies to a stated case under Part 2of that Act.

(11) An order following an application under subsection (2)(a) shall not take effect—(a) until the end of the period of 21 days beginning with the day after the day

on which the order is made, or(b) if an appeal is made under subsection (9) above within that period, until the

appeal is determined or abandoned.

(12) An order under subsection (2)(b) shall not take effect—(a) until the end of the period within which an appeal against the order could be

brought under the Criminal Procedure (Scotland) Act 1995, or(b) if an appeal is made within that period, until the appeal is determined or

abandoned.

(13) Subject to subsection (14), infringing copies or articles forfeited under this sectionshall be destroyed in accordance with such directions as the court may give.

Copyright, Designs and Patents Act 1988 (c. 48)Part I – CopyrightChapter VII – Copyright LicensingDocument Generated: 2020-11-25

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(14) On making an order under this section the court may direct that the infringing copiesor articles to which the order relates shall (instead of being destroyed) be forfeitedto the owner of the copyright in question or dealt with in such other way as the courtconsiders appropriate.

(15) For the purposes of this section—“relevant offence” means an offence under section 107(1) or (2) (criminal

liability for making or dealing with infringing articles, etc.), or under theTrade Descriptions Act 1968 (c. 29) or any offence involving dishonesty ordeception;

“the court” means—(a) in relation to an order made on an application under subsection (2)(a),

the sheriff, and(b) in relation to an order made under subsection (2)(b), the court which

imposed the penalty.

Textual AmendmentsF42 Ss. 114A, 114B inserted (20.11.2002) by 2002 c. 25, s. 3; S.I. 2002/2749, art. 2

115 Jurisdiction of county court and sheriff court.

(1) In England, Wales and Northern Ireland a county court may entertain proceedingsunder—

section 99 (order for delivery up of infringing copy or other article),section 102(5) (order as to exercise of rights by copyright owner where exclusivelicensee has concurrent rights), orsection 114 (order as to disposal of infringing copy or other article),

where the value of the infringing copies and other articles in question does not exceedthe county court limit for actions in tort.

(2) In Scotland proceedings for an order under any of those provisions may be broughtin the sheriff court.

(3) Nothing in this section shall be construed as affecting the jurisdiction of the HighCourt or, in Scotland, the Court of Session.

CHAPTER VII

COPYRIGHT LICENSING

Modifications etc. (not altering text)C41 Pt. I Ch. VII (ss. 116-144) applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 17(1)-(3)

(with Pt. III)





http://www.legislation.gov.uk/id/ukpga/1988/48/part/I/chapter/VII





Chapter VII – Copyright LicensingDocument Generated: 2020-11-25



Licensing schemes and licensing bodies

116 Licensing schemes and licensing bodies.

(1) In this Part a “licensing scheme” means a scheme setting out—(a) the classes of case in which the operator of the scheme, or the person on whose

behalf he acts, is willing to grant copyright licences, and(b) the terms on which licences would be granted in those classes of case;

and for this purpose a “scheme” includes anything in the nature of a scheme, whetherdescribed as a scheme or as a tariff or by any other name.

(2) In this Chapter a “licensing body” means a society or other organisation which has asits main object, or one of its main objects, the negotiation or granting, either as owneror prospective owner of copyright or as agent for him, of copyright licences, and whoseobjects include the granting of licences covering works of more than one author.

(3) In this section “copyright licences” means licences to do, or authorise the doing of,any of the acts restricted by copyright.

(4) References in this Chapter to licences or licensing schemes covering works of morethan one author do not include licences or schemes covering only—

(a) a single collective work or collective works of which the authors are the same,or

(b) works made by, or by employees of or commissioned by, a single individual,firm, company or group of companies.

For this purpose a group of companies means a holding company and its subsidiaries,within the meaning of section 736 of the M17Companies Act 1985.


References and applications with respect to licensing schemes

117 Licensing schemes to which ss. 118 to 123 apply.

Sections 118 to 123 (references and applications with respect to licensing schemes)apply to—

(a) licensing schemes operated by licensing bodies in relation to the copyrightin literary, dramatic, musical or artistic works or films (or film sound-trackswhen accompanying a film) which cover works of more than one author, sofar as they relate to licences for—

(i) copying the work,(ii) performing, playing or showing the work in public, or

(iii) broadcasting the work or including it in a cable programme service;(b) all licensing schemes in relation to the copyright in sound recordings (other

than film sound-tracks when accompanying a film), broadcasts or cableprogrammes, or the typographical arrangement of published editions; and



83



(c) all licensing schemes in relation to the copyright in sound recordings, filmsor computer programs so far as they relate to licences for the rental of copiesto the public;

and in those sections “licensing scheme” means a licensing scheme of any of thosedescriptions.

118 Reference of proposed licensing scheme to tribunal.

(1) The terms of a licensing scheme proposed to be operated by a licensing body may bereferred to the Copyright Tribunal by an organisation claiming to be representativeof persons claiming that they require licences in cases of a description to which thescheme would apply, either generally or in relation to any description of case.

(2) The Tribunal shall first decide whether to entertain the reference, and may decline todo so on the ground that the reference is premature.

(3) If the Tribunal decides to entertain the reference it shall considerthe matter referred andmake such order, either confirming or varying the proposed scheme, either generallyor so far as it relates to cases of the description to which the reference relates, as theTribunal may determine to be reasonable in the circumstances.

(4) The order may be made so as to be in force indefinitely or for such period as theTribunal may determine.

119 Reference of licensing scheme to tribunal.

(1) If while a licensing scheme is in operation a dispute arises between the operator ofthe scheme and—

(a) a person claiming that he requires a licence in a case of a description to whichthe scheme applies, or

(b) an organisation claiming to be representative of such persons,that person or organisation may refer the scheme to the Copyright Tribunal in so faras it relates to cases of that description.

(2) A scheme which has been referred to the Tribunal under this section shall remain inoperation until proceedings on the reference are concluded.

(3) The Tribunal shall consider the matter in dispute and make such order, eitherconfirming or varying the scheme so far as it relates to cases of the description towhich the reference relates, as the Tribunal may determine to be reasonable in thecircumstances.


120 Further reference of scheme to tribunal.

(1) Where the Copyright Tribunal has on a previous reference of a licensing scheme undersection 118 or 119, or under this section, made an order with respect to the scheme,then, while the order remains in force—

(a) the operator of the scheme,(b) a person claiming that he requires a licence in a case of the description to

which the order applies, or





(c) an organisation claiming to be representative of such persons,may refer the scheme again to the Tribunal so far as it relates to cases of thatdescription.

(2) A licensing scheme shall not, except with the special leave of the Tribunal, be referredagain to the Tribunal in respect of the same description of cases—

(a) within twelve months from the date of the order on the previous reference, or(b) if the order was made so as to be in force for 15 months or less, until the last

three months before the expiry of the order.

(3) A scheme which has been referred to the Tribunal under this section shall remain inoperation until proceedings on the reference are concluded.

(4) The Tribunal shall consider the matter in dispute and make such order, eitherconfirming, varying or further varying the scheme so far as it relates to cases ofthe description to which the reference relates, as the Tribunal may determine to bereasonable in the circumstances.


121 Application for grant of licence in connection with licensing scheme.

(1) A person who claims, in a case covered by a licensing scheme, that the operator of thescheme has refused to grant him or procure the grant to him of a licence in accordancewith the scheme, or has failed to do so within a reasonable time after being asked, mayapply to the Copyright Tribunal.

(2) A person who claims, in a case excluded from a licensing scheme, that the operatorof the scheme either—

(a) has refused to grant him a licence or procure the grant to him of a licence, orhas failed to do so within a reasonable time of being asked, and that in thecircumstances it is unreasonable that a licence should not be granted, or

(b) proposes terms for a licence which are unreasonable,may apply to the Copyright Tribunal.

(3) A case shall be regarded as excluded from a licensing scheme for the purposes ofsubsection (2) if—

(a) the scheme provides for the grant of licences subject to terms exceptingmatters from the licence and the case falls within such an exception, or

(b) the case is so similar to those in which licences are granted under the schemethat it is unreasonable that it should not be dealt with in the same way.

(4) If the Tribunal is satisfied that the claim is well-founded, it shall make an orderdeclaring that, in respect of the matters specified in the order, the applicant is entitled toa licence on such terms as the Tribunal may determine to be applicable in accordancewith the scheme or, as the case may be, to be reasonable in the circumstances.



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122 Application for review of order as to entitlement to licence.

(1) Where the Copyright Tribunal has made an order under section 121 that a person isentitled to a licence under a licensing scheme, the operator of the scheme or the originalapplicant may apply to the Tribunal to review its order.

(2) An application shall not be made, except with the special leave of the Tribunal—(a) within twelve months from the date of the order, or of the decision on a

previous application under this section, or(b) if the order was made so as to be in force for 15 months or less, or as a result of

the decision on a previous application under this section is due to expire within15 months of that decision, until the last three months before the expiry date.

(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunalmay determine to be reasonable having regard to the terms applicable in accordancewith the licensing scheme or, as the case may be, the circumstances of the case.

123 Effect of order of tribunal as to licensing scheme.

(1) A licensing scheme which has been confirmed or varied by the Copyright Tribunal—(a) under section 118 (reference of terms of proposed scheme), or(b) under section 119 or 120 (reference of existing scheme to Tribunal),

shall be in force or, as the case may be, remain in operation, so far as it relates tothe description of case in respect of which the order was made, so long as the orderremains in force.

(2) While the order is in force a person who in a case of a class to which the order applies—(a) pays to the operator of the scheme any charges payable under the scheme in

respect of a licence covering the case in question or, if the amount cannotbe ascertained, gives an undertaking to the operator to pay them whenascertained, and

(b) complies with the other terms applicable to such a licence under the scheme,shall be in the same position as regards infringement of copyright as if he had at allmaterial times been the holder of a licence granted by the owner of the copyright inquestion in accordance with the scheme.

(3) The Tribunal may direct that the order, so far as it varies the amount of charges payable,has effect from a date before that on which it is made, but not earlier than the date onwhich the reference was made or, if later, on which the scheme came into operation.

If such a direction is made—(a) any necessary repayments, or further payments, shall be made in respect of

charges already paid, and(b) the reference in subsection (2)(a) to the charges payable under the scheme

shall be construed as a reference to the charges so payable by virtue of theorder.

No such direction may be made where subsection (4) below applies.

(4) An order of the Tribunal under section 119 or 120 made with respect to a scheme whichis certified for any purpose under section 143 has effect, so far as it varies the schemeby reducing the charges payable for licences, from the date on which the referencewas made to the Tribunal.





(5) Where the Tribunal has made an order under section 121 (order as to entitlement tolicence under licensing scheme) and the order remains in force, the person in whosefavour the order is made shall if he—

(a) pays to the operator of the scheme any charges payable in accordance withthe order or, if the amount cannot be ascertained, gives an undertaking to paythe charges when ascertained, and

(b) complies with the other terms specified in the order,be in the same position as regards infringement of copyright as if he had at all materialtimes been the holder of a licence granted by the owner of the copyright in questionon the terms specified in the order.

References and applications with respect to licensing by licensing bodies

124 Licences to which ss. 125 to 128 apply.

Sections 125 to 128 (references and applications with respect to licensing by licensingbodies) apply to the following descriptions of licence granted by a licensing bodyotherwise than in pursuance of a licensing scheme—

(a) licences relating to the copyright in literary, dramatic, musical or artistic worksor films (or film sound-tracks when accompanying a film) which cover worksof more than one author, so far as they authorise—

(i) copying the work,(ii) performing, playing or showing the work in public, or

(iii) broadcasting the work or including it in a cable programme service;(b) any licence relating to the copyright in a sound recording (other than a film

sound-track when accompanying a film), broadcast or cable programme, orthe typographical arrangement of a published edition; and

(c) all licences in relation to the copyright in sound recordings, films or computerprograms so far as they relate to the rental of copies to the public;

and in those sections a “licence” means a licence of any of those descriptions.

125 Reference to tribunal of proposed licence.

(1) The terms on which a licensing body proposes to grant a licence may be referred tothe Copyright Tribunal by the prospective licensee.

(2) The Tribunal shall first decide whether to entertain the reference, and may decline todo so on the ground that the reference is premature.

(3) If the Tribunal decides to entertain the reference it shall consider the terms of theproposed licence and make such order, either confirming or varying the terms, as itmay determine to be reasonable in the circumstances.



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126 Reference to tribunal of expiring licence.

(1) A licensee under a licence which is due to expire, by effluxion of time or as a result ofnotice given by the licensing body, may apply to the Copyright Tribunal on the groundthat it is unreasonable in the circumstances that the licence should cease to be in force.

(2) Such an application may not be made until the last three months before the licenceis due to expire.

(3) A licence in respect of which a reference has been made to the Tribunal shall remainin operation until proceedings on the reference are concluded.

(4) If the Tribunal finds the application well-founded, it shall make an order declaring thatthe licensee shall continue to be entitled to the benefit of the licence on such terms asthe Tribunal may determine to be reasonable in the circumstances.

(5) An order of the Tribunal under this section may be made so as to be in force indefinitelyor for such period as the Tribunal may determine.

127 Application for review of order as to licence.

(1) Where the Copyright Tribunal has made an order under section 125 or 126, thelicensing body or the person entitled to the benefit of the order may apply to theTribunal to review its order.

(2) An application shall not be made, except with the special leave of the Tribunal—(a) within twelve months from the date of the order or of the decision on a

previous application under this section, or(b) if the order was made so as to be in force for 15 months or less, or as a result of

the decision on a previous application under this section is due to expire within15 months of that decision, until the last three months before the expiry date.

(3) The Tribunal shall on an application for review confirm or vary its order as the Tribunalmay determine to be reasonable in the circumstances.

128 Effect of order of tribunal as to licence.

(1) Where the Copyright Tribunal has made an order under section 125 or 126 and theorder remains in force, the person entitled to the benefit of the order shall if he—

(a) pays to the licensing body any charges payable in accordance with the order or,if the amount cannot be ascertained, gives an undertaking to pay the chargeswhen ascertained, and

(b) complies with the other terms specified in the order,be in the same position as regards infringement of copyright as if he had at all materialtimes been the holder of a licence granted by the owner of the copyright in questionon the terms specified in the order.

(2) The benefit of the order may be assigned—(a) in the case of an order under section 125, if assignment is not prohibited under

the terms of the Tribunal’s order; and(b) in the case of an order under section 126, if assignment was not prohibited

under the terms of the original licence.





(3) The Tribunal may direct that an order under section 125 or 126, or an order undersection 127 varying such an order, so far as it varies the amount of charges payable,has effect from a date before that on which it is made, but not earlier than the dateon which the reference or application was made or, if later, on which the licence wasgranted or, as the case may be, was due to expire.

If such a direction is made—(a) any necessary repayments, or further payments, shall be made in respect of

charges already paid, and(b) the reference in subsection (1)(a) to the charges payable in accordance with

the order shall be construed, where the order is varied by a later order, as areference to the charges so payable by virtue of the later order.


[F43128ANotification of licence or licensing scheme for excepted sound recordings

(1) This section only applies to a proposed licence or licensing scheme that will authorisethe playing in public of excepted sound recordings included in broadcasts, incircumstances where by reason of the exclusion of excepted sound recordings fromsection 72(1), the playing in public of such recordings would otherwise infringe thecopyright in them.

(2) A licensing body must notify the Secretary of State of the details of any proposedlicence or licensing scheme for excepted sound recordings before it comes intooperation.

(3) A licence or licensing scheme, which has been notified under subsection (2), may notbe operated by the licensing body until 28 days have elapsed since that notification.

(4) Subject to subsection (5), the Secretary of State shall take into account the mattersset out in subsection (6) and then either—

(a) refer the licence or licensing scheme to the Copyright Tribunal for adetermination of whether the licence or licensing scheme is reasonable inthe circumstances, or

(b) notify the licensing body that he does not intend to refer the licence orlicensing scheme to the Tribunal.

(5) If the Secretary of State becomes aware—(a) that a licensing body has failed to notify him of a licence or licensing scheme

under subsection (2) before it comes into operation; or(b) that a licence or licensing scheme has been operated within 28 days of a

notification under subsection (2),subsection (4) does not apply, but the Secretary of State may at any time refer thelicence or licensing scheme to the Tribunal for a determination of whether the licenceor licensing scheme is reasonable in the circumstances, or may notify the licensingbody that he does not intend to refer it to the Tribunal.

(6) The matters referred to in subsection (4) are—(a) whether the terms and conditions of the proposed licence or licensing scheme

have taken into account the factors set out in subsection (7);


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(b) any written representations received by the Secretary of State;(c) previous determinations of the Tribunal;(d) the availability of other schemes, or the granting of other licences, to other

persons in similar circumstances, and the terms of those schemes or licences;and

(e) the extent to which the licensing body has consulted any person who wouldbe affected by the proposed licence or licensing scheme, or organisationsrepresenting such persons, and the steps, if any, it has taken as a result.

(7) The factors referred to in subsection (6) are—(a) the extent to which the broadcasts to be shown or played by a potential

licensee in circumstances mentioned in subsection (1) are likely to includeexcepted sound recordings;

(b) the size and the nature of the audience that a licence or licensing schemewould permit to hear the excepted sound recordings;

(c) what commercial benefit a potential licensee is likely to obtain from playingthe excepted sound recordings; and

(d) the extent to which the owners of copyright in the excepted sound recordingswill receive equitable remuneration, from sources other than the proposedlicence or licensing scheme, for the inclusion of their recordings in thebroadcasts to be shown or played in public by a potential licensee.

(8) A proposed licence or licensing scheme that must be notified to the Secretary of Stateunder subsection (2) may only be referred to the Tribunal under section 118 or 125before such notification takes place.

(9) A proposed licensing scheme that has been notified to the Secretary of State undersubsection (2) may only be referred to the Tribunal under section 119 after theSecretary of State has notified the licensing body that he does not intend to refer thelicensing scheme to the Tribunal.

(10) If a reference made to the Tribunal under section 118 or 125 is permitted undersubsection (8) then—

(a) the reference shall not be considered premature only because the licenceor licensing scheme has not been notified to the Secretary of State undersubsection (2); and

(b) where the Tribunal decides to entertain the reference, subsection (2) to (5)shall not apply.

(11) Nothing in this section shall be taken to prejudice any right to make a reference orapplication to the Tribunal under sections 120 to 122, 126 or 127.

(12) This section applies to modifications to an existing licence or licensing scheme as itapplies to a proposed licence or licensing scheme.

(13) In this section and in section 128B, any reference to a “licence” means a licencegranted by a licensing body otherwise than in pursuance of a licensing scheme andwhich covers works of more than one author.]





Textual AmendmentsF43 Ss. 128A, 128B inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(3) (with regs. 31-40)


[F43128BReferences to the Tribunal by the Secretary of State under section 128A

(1) The Copyright Tribunal may make appropriate enquiries to establish whethera licence or licensing scheme referred to it by the Secretary of State undersection 128A(4)(a) or (5) is reasonable in the circumstances.

(2) When considering the matter referred, and after concluding any such enquiries, theTribunal shall take into account—

(a) whether the terms and conditions of the proposed licence or licensing schemehave taken into account the factors set out in section 128A(7); and

(b) any other factors it considers relevant,and shall then make an order under subsection (3).

(3) The Tribunal shall make such order—(a) in the case of a licensing scheme, either confirming or varying the proposed

scheme, either generally or so far as it relates to cases of any description; or(b) in the case of a licence, either confirming or varying the proposed licence,

as the Tribunal may determine to be reasonable in the circumstances.

(4) The Tribunal may direct that the order, so far as it reduces the amount of chargespayable, has effect from a date before that on which it is made.

If such a direction is made, any necessary repayments to a licensee shall be made inrespect of charges already paid.

(5) The Tribunal may award simple interest on repayments, at such rate and for suchperiod, ending not later than the date of the order, as it thinks fit.]

Textual AmendmentsF43 Ss. 128A, 128B inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 21(3) (with regs. 31-40)

Factors to be taken into account in certain classes of case

129 General considerations: unreasonable discrimination.

In determining what is reasonable on a reference or application under this Chapterrelating to a licensing scheme or licence, the Copyright Tribunal shall have regard to—

(a) the availability of other schemes, or the granting of other licences, to otherpersons in similar circumstances, and

(b) the terms of those schemes or licences,










91



and shall exercise its powers so as to secure that there is no unreasonablediscrimination between licensees, or prospective licensees, under the scheme orlicence to which the reference or application relates and licensees under other schemesoperated by, or other licences granted by, the same person.

130 Licences for reprographic copying.

Where a reference or application is made to the Copyright Tribunal under this Chapterrelating to the licensing of reprographic copying of published literary, dramatic,musical or artistic works, or the typographical arrangement of published editions, theTribunal shall have regard to—

(a) the extent to which published editions of the works in question are otherwiseavailable,

(b) the proportion of the work to be copied, and(c) the nature of the use to which the copies are likely to be put.

131 Licences for educational establishments in respect of works included inbroadcasts or cable programmes.

(1) This section applies to references or applications under this Chapter relating to licencesfor the recording by or on behalf of educational establishments of broadcasts orcable programmes which include copyright works, or the making of copies of suchrecordings, for educational purposes.

(2) The Copyright Tribunal shall, in considering what charges (if any) should be paid fora licence, have regard to the extent to which the owners of copyright in the worksincluded in the broadcast or cable programme have already received, or are entitledto receive, payment in respect of their inclusion.

132 Licences to reflect conditions imposed by promoters of events.

(1) This section applies to references or applications under this Chapter in respect oflicences relating to sound recordings, films, broadcasts or cable programmes whichinclude, or are to include, any entertainment or other event.

(2) The Copyright Tribunal shall have regard to any conditions imposed by the promotersof the entertainment or other event; and, in particular, the Tribunal shall not hold arefusal or failure to grant a licence to be unreasonable if it could not have been grantedconsistently with those conditions.

(3) Nothing in this section shall require the Tribunal to have regard to any such conditionsin so far as they—

(a) purport to regulate the charges to be imposed in respect of the grant of licences,or

(b) relate to payments to be made to the promoters of any event in considerationof the grant of facilities for making the recording, film, broadcast or cableprogramme.

133 Licences to reflect payments in respect of underlying rights.

(1) In considering what charges should be paid for a licence—





(a) on a reference or application under this Chapter relating to licences for therental to the public of copies of sound recordings, films or computer programs,or

(b) on an application under section 142 (settlement of royalty or other sumpayable for deemed licence),

the Copyright Tribunal shall take into account any reasonable payments which theowner of the copyright in the sound recording, film or computer program is liable tomake in consequence of the granting of the licence, or of the acts authorised by thelicence, to owners of copyright in works included in that work.

(2) On any reference or application under this Chapter relating to licensing in respectof the copyright in sound recordings, films, broadcasts or cable programmes, theCopyright Tribunal shall take into account, in considering what charges should bepaid for a licence, any reasonable payments which the copyright owner is liable tomake in consequence of the granting of the licence, or of the acts authorised by thelicence, in respect of any performance included in the recording, film, broadcast orcable programme.

134 Licences in respect of works included in re-transmissions.

(1) This section applies to references or applications under this Chapter relating to licencesto include in a broadcast or cable programme service—

(a) literary, dramatic, musical or artistic works, or,(b) sound recordings or films,

where one broadcast or cable programme (“the first transmission") is, by reception andimmediate re-transmission, to be further broadcast or included in a cable programmeservice (“the further transmission").

(2) So far as the further transmission is to the same area as the first transmission, theCopyright Tribunal shall, in considering what charges (if any) should be paid forlicences for either transmission, have regard to the extent to which the copyright ownerhas already received, or is entitled to receive, payment for the other transmission whichadequately remunerates him in respect of transmissions to that area.

(3) So far as the further transmission is to an area outside that to which the firsttransmission was made, the Tribunal shall (except where subsection (4) applies) leavethe further transmission out of account in considering what charges (if any) should bepaid for licences for the first transmission.

F44(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual AmendmentsF44 S. 134(4) repealed by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(3), Sch. 21

135 Mention of specific matters not to exclude other relevant considerations.

The mention in sections 129 to 134 of specific matters to which the Copyright Tribunalis to have regard in certain classes of case does not affect the Tribunal’s generalobligation in any case to have regard to all relevant considerations.






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[F45 Use as of right of sound recordings in broadcasts and cable programme services]

Textual AmendmentsF45 Ss. 135A–135G inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(1)

135A Circumstances in which right available.

(1) Section 135C applies to the inclusion in a broadcast or cable programme service ofany sound recordings if—

(a) a licence to include those recordings in the broadcast or cable programmeservice could be granted by a licensing body or such a body could procure thegrant of a licence to do so,

(b) the condition in subsection (2) or (3) applies, and(c) the person including those recordings in the broadcast or cable programme

service has complied with section 135B.

(2) Where the person including the recordings in the broadcast or cable programmeservice does not hold a licence to do so, the condition is that the licensing body refusesto grant, or procure the grant of, such a licence, being a licence—

(a) whose terms as to payment for including the recordings in the broadcast orcable programme service would be acceptable to him or comply with an orderof the Copyright Tribunal under section 135D relating to such a licence or anyscheme under which it would be granted, and

(b) allowing unlimited needletime or such needletime as he has demanded.

(3) Where he holds a licence to include the recordings in the broadcast or cable programmeservice, the condition is that the terms of the licence limit needletime and the licensingbody refuses to substitute or procure the substitution of terms allowing unlimitedneedletime or such needletime as he has demanded, or refuses to do so on terms thatfall within subsection (2)(a).

(4) The references in subsection (2) to refusing to grant, or procure the grant of, a licence,and in subsection (3) to refusing to substitute or procure the substitution of terms,include failing to do so within a reasonable time of being asked.

(5) In the group of sections from this section to section 135G—“needletime” means the time in any period (whether determined as a

number of hours in the period or a proportion of the period, or otherwise) inwhich any recordings may be included in a broadcast or cable programmeservice;

“sound recording” does not include a film sound track when accompanyinga film.

(6) In sections 135B to 135G, “terms of payment” means terms as to payment forincluding sound recordings in a broadcast or cable programme service.

[F46135BNotice of intention to exercise right.

(1) A person intending to avail himself of the right conferred by section 135C must—(a) give notice to the licensing body of his intention to exercise the right, asking

the body to propose terms of payment, and







(b) after receiving the proposal or the expiry of a reasonable period, givereasonable notice to the licensing body of the date on which he proposes tobegin exercising that right, and the terms of payment in accordance with whichhe intends to do so.

(2) Where he has a licence to include the recordings in a broadcast or cable programmeservice, the date specified in a notice under subsection (1)(b) must not be sooner thanthe date of expiry of that licence except in a case falling within section 135A(3).

(3) Before the person intending to avail himself of the right begins to exercise it, he must—(a) give reasonable notice to the Copyright Tribunal of his intention to exercise

the right, and of the date on which he proposes to begin to do so, and(b) apply to the Tribunal under section 135D to settle the terms of payment.]


[F47135CConditions for exercise of right.

(1) A person who, on or after the date specified in a notice under section 135B(1)(b), includes in a broadcast or cable programme service any sound recordings incircumstances in which this section applies, and who—

(a) complies with any reasonable condition, notice of which has been given tohim by the licensing body, as to inclusion in the broadcast or cable programmeservice of those recordings,

(b) provides that body with such information about their inclusion in the broadcastor cable programme service as it may reasonably require, and

(c) makes the payments to the licensing body that are required by this section,shall be in the same position as regards infringement of copyright as if he had at allmaterial times been the holder of a licence granted by the owner of the copyright inquestion.

(2) Payments are to be made at not less than quarterly intervals in arrears.

(3) The amount of any payment is that determined in accordance with any order of theCopyright Tribunal under section 135D or, if no such order has been made—

(a) in accordance with any proposal for terms of payment made by the licensingbody pursuant to a request under section 135B, or

(b) where no proposal has been so made or the amount determined in accordancewith the proposal so made is unreasonably high, in accordance with the termsof payment notified to the licensing body under section 135B(1)(b).

(4) Where this section applies to the inclusion in a broadcast or cable programme serviceof any sound recordings, it does so in place of any licence.]







95



[F48135DApplications to settle payments.

(1) On an application to settle the terms of payment, the Copyright Tribunal shallconsider the matter and make such order as it may determine to be reasonable in thecircumstances.

(2) An order under subsection (1) has effect from the date the applicant begins toexercise the right conferred by section 135C and any necessary repayments, or furtherpayments, shall be made in respect of amounts that have fallen due.]


[F49135EReferences etc. about conditions, information and other terms.

(1) A person exercising the right conferred by section 135C, or who has given notice tothe Copyright Tribunal of his intention to do so, may refer to the Tribunal—

(a) any question whether any condition as to the inclusion in a broadcast or cableprogramme service of sound recordings, notice of which has been given tohim by the licensing body in question, is a reasonable condition, or

(b) any question whether any information is information which the licensing bodycan reasonably require him to provide.

(2) On a reference under this section, the Tribunal shall consider the matter and make suchorder as it may determine to be reasonable in the circumstances.]


[F50135F Application for review of order.

(1) A person exercising the right conferred by section 135C or the licensing body mayapply to the Copyright Tribunal to review any order under section 135D or 135E.

(2) An application shall not be made, except with the special leave of the Tribunal—(a) within twelve months from the date of the order, or of the decision on a

previous application under this section, or(b) if the order was made so as to be in force for fifteen months or less, or as a

result of a decision on a previous application is due to expire within fifteenmonths of that decision, until the last three months before the expiry date.

(3) On the application the Tribunal shall consider the matter and make such orderconfirming or varying the original order as it may determine to be reasonable in thecircumstances.

(4) An order under this section has effect from the date on which it is made or such laterdate as may be specified by the Tribunal.]










[F51135GFactors to be taken into account.

(1) In determining what is reasonable on an application or reference under section 135Dor 135E, or on reviewing any order under section 135F, the Copyright Tribunal shall—

(a) have regard to the terms of any orders which it has made in the case of personsin similar circumstances exercising the right conferred by section 135C, and

(b) exercise its powers so as to secure that there is no unreasonable discriminationbetween persons exercising that right against the same licensing body.

(2) In settling the terms of payment under section 135D, the Tribunal shall not be guidedby any order it has made under any enactment other than that section.

(3) Section 134 (factors to be taken into account: retransmissions) applies on anapplication or reference under sections 135D to 135F as it applies on an applicationor reference relating to a licence.]


[F52135HPower to amend sections 135A to 135G.

(1) The Secretary of State may by order, subject to such transitional provision as appearsto him to be appropriate, amend sections 135A to 135G so as—

(a) to include in any reference to sound recordings any works of a descriptionspecified in the order; or

(b) to exclude from any reference to a broadcast or cable programme service anybroadcast or cable programme service of a description so specified.

(2) An order shall be made by statutory instrument; and no order shall be made unlessa draft of it has been laid before and approved by resolution of each House ofParliament.]

Textual AmendmentsF52 S. 135H inserted (1.11.1996) by 1996 c. 55, s. 139(1) (with s. 43(6)); S.I. 1996/2120, art. 5, Sch. 2

Implied indemnity in schemes or licences for reprographic copying

136 Implied indemnity in certain schemes and licences for reprographic copying.

(1) This section applies to—(a) schemes for licensing reprographic copying of published literary, dramatic,

musical or artistic works, or the typographical arrangement of publishededitions, and












97



(b) licences granted by licensing bodies for such copying,where the scheme or licence does not specify the works to which it applies with suchparticularity as to enable licensees to determine whether a work falls within the schemeor licence by inspection of the scheme or licence and the work.

(2) There is implied—(a) in every scheme to which this section applies an undertaking by the operator

of the scheme to indemnify a person granted a licence under the scheme, and(b) in every licence to which this section applies an undertaking by the licensing

body to indemnify the licensee,against any liability incurred by him by reason of his having infringed copyright bymaking or authorising the making of reprographic copies of a work in circumstanceswithin the apparent scope of his licence.

(3) The circumstances of a case are within the apparent scope of a licence if—(a) it is not apparent from inspection of the licence and the work that it does not

fall within the description of works to which the licence applies; and(b) the licence does not expressly provide that it does not extend to copyright of

the description infringed.

(4) In this section “liability” includes liability to pay costs; and this section appliesin relation to costs reasonably incurred by a licensee in connection with actual orcontemplated proceedings against him for infringement of copyright as it applies tosums which he is liable to pay in respect of such infringement.

(5) A scheme or licence to which this section applies may contain reasonable provision—(a) with respect to the manner in which, and time within which, claims under the

undertaking implied by this section are to be made;(b) enabling the operator of the scheme or, as the case may be, the licensing

body to take over the conduct of any proceedings affecting the amount of hisliability to indemnify.

Reprographic copying by educational establishments

137 Power to extend coverage of scheme or licence.

(1) This section applies to—(a) a licensing scheme to which sections 118 to 123 apply (see section 117) and

which is operated by a licensing body, or(b) a licence to which sections 125 to 128 apply (see section 124),

so far as it provides for the grant of licences, or is a licence, authorising the makingby or on behalf of educational establishments for the purposes of instruction ofreprographic copies of published literary, dramatic, musical or artistic works, or of thetypographical arrangement of published editions.

(2) If it appears to the Secretary of State with respect to a scheme or licence to which thissection applies that—

(a) works of a description similar to those covered by the scheme or licence areunreasonably excluded from it, and





(b) making them subject to the scheme or licence would not conflict with thenormal exploitation of the works or unreasonably prejudice the legitimateinterests of the copyright owners,

he may by order provide that the scheme or licence shall extend to those works.

(3) Where he proposes to make such an order, the Secretary of State shall give notice ofthe proposal to—

(a) the copyright owners,(b) the licensing body in question, and(c) such persons or organisations representative of educational establishments,

and such other persons or organisations, as the Secretary of State thinks fit.

(4) The notice shall inform those persons of their right to make written or oralrepresentations to the Secretary of State about the proposal within six months fromthe date of the notice; and if any of them wishes to make oral representations, theSecretary of State shall appoint a person to hear the representations and report to him.

(5) In considering whether to make an order the Secretary of State shall take into accountany representations made to him in accordance with subsection (4), and such othermatters as appear to him to be relevant.

Modifications etc. (not altering text)C42 Ss. 137–141 extended by S.I. 1989/1067, art. 2

138 Variation or discharge of order extending scheme or licence.

(1) The owner of the copyright in a work in respect of which an order is in force undersection 137 may apply to the Secretary of State for the variation or discharge of theorder, stating his reasons for making the application.

(2) The Secretary of State shall not entertain an application made within two years of themaking of the original order, or of the making of an order on a previous applicationunder this section, unless it appears to him that the circumstances are exceptional.

(3) On considering the reasons for the application the Secretary of State may confirm theorder forthwith; if he does not do so, he shall give notice of the application to—

(a) the licensing body in question, and(b) such persons or organisations representative of educational establishments,

and such other persons or organisations, as he thinks fit.

(4) The notice shall inform those persons of their right to make written or oralrepresentations to the Secretary of State about the application within the period oftwo months from the date of the notice; and if any of them wishes to make oralrepresentations, the Secretary of State shall appoint a person to hear the representationsand report to him.

(5) In considering the application the Secretary of State shall take into account the reasonsfor the application, any representations made to him in accordance with subsection (4),and such other matters as appear to him to be relevant.




99



(6) The Secretary of State may make such order as he thinks fit confirming or dischargingthe order (or, as the case may be, the order as previously varied), or varying (or furthervarying) it so as to exclude works from it.


139 Appeals against orders.

(1) The owner of the copyright in a work which is the subject of an order under section 137(order extending coverage of scheme or licence) may appeal to the Copyright Tribunalwhich may confirm or discharge the order, or vary it so as to exclude works from it,as it thinks fit having regard to the considerations mentioned in subsection (2) of thatsection.

(2) Where the Secretary of State has made an order under section 138 (order confirming,varying or discharging order extending coverage of scheme or licence)—

(a) the person who applied for the order, or(b) any person or organisation representative of educational establishments who

was given notice of the application for the order and made representations inaccordance with subsection (4) of that section,

may appeal to the Tribunal which may confirm or discharge the order or make anyother order which the Secretary of State might have made.

(3) An appeal under this section shall be brought within six weeks of the making of theorder or such further period as the Tribunal may allow.

(4) An order under section 137 or 138 shall not come into effect until the end of the periodof six weeks from the making of the order or, if an appeal is brought before the end ofthat period, until the appeal proceedings are disposed of or withdrawn.

(5) If an appeal is brought after the end of that period, any decision of the Tribunal on theappeal does not affect the validity of anything done in reliance on the order appealedagainst before that decision takes effect.


140 Inquiry whether new scheme or general licence required.

(1) The Secretary of State may appoint a person to inquire into the question whether newprovision is required (whether by way of a licensing scheme or general licence) toauthorise the making by or on behalf of educational establishments for the purposesof instruction of reprographic copies of—

(a) published literary, dramatic, musical or artistic works, or(b) the typographical arrangement of published editions,









of a description which appears to the Secretary of State not to be covered by an existinglicensing scheme or general licence and not to fall within the power conferred bysection 137 (power to extend existing schemes and licences to similar works).

(2) The procedure to be followed in relation to an inquiry shall be such as may beprescribed by regulations made by the Secretary of State.

(3) The regulations shall, in particular, provide for notice to be given to—(a) persons or organisations appearing to the Secretary of State to represent the

owners of copyright in works of that description, and(b) persons or organisations appearing to the Secretary of State to represent

educational establishments,and for the making of written or oral representations by such persons; but withoutprejudice to the giving of notice to, and the making of representations by, other personsand organisations.

(4) The person appointed to hold the inquiry shall not recommend the making of newprovision unless he is satisfied—

(a) that it would be of advantage to educational establishments to be authorisedto make reprographic copies of the works in question, and

(b) that making those works subject to a licensing scheme or general licencewould not conflict with the normal exploitation of the works or unreasonablyprejudice the legitimate interests of the copyright owners.

(5) If he does recommend the making of new provision he shall specify any terms, otherthan terms as to charges payable, on which authorisation under the new provisionshould be available.


(7) In this section (and section 141) a “general licence” means a licence granted by alicensing body which covers all works of the description to which it applies.


141 Statutory licence where recommendation not implemented.

(1) The Secretary of State may, within one year of the making of a recommendation undersection 140 by order provide that if, or to the extent that, provision has not been madein accordance with the recommendation, the making by or on behalf of an educationalestablishment, for the purposes of instruction, of reprographic copies of the works towhich the recommendation relates shall be treated as licensed by the owners of thecopyright in the works.

(2) For that purpose provision shall be regarded as having been made in accordance withthe recommendation if—

(a) a certified licensing scheme has been established under which a licence isavailable to the establishment in question, or

(b) a general licence has been—




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(i) granted to or for the benefit of that establishment, or(ii) referred by or on behalf of that establishment to the Copyright

Tribunal under section 125 (reference of terms of proposed licence),or

(iii) offered to or for the benefit of that establishment and refused withoutsuch a reference,

and the terms of the scheme or licence accord with the recommendation.

(3) The order shall also provide that any existing licence authorising the making of suchcopies (not being a licence granted under a certified licensing scheme or a generallicence) shall cease to have effect to the extent that it is more restricted or more onerousthan the licence provided for by the order.

(4) The order shall provide for the licence to be free of royalty but, as respects othermatters, subject to any terms specified in the recommendation and to such other termsas the Secretary of State may think fit.

(5) The order may provide that where a copy which would otherwise be an infringingcopy is made in accordance with the licence provided by the order but is subsequentlydealt with, it shall be treated as an infringing copy for the purposes of that dealing,and if that dealing infringes copyright for all subsequent purposes.

In this subsection “dealt with” means sold or let for hire, offered or exposed for saleor hire, or exhibited in public.

(6) The order shall not come into force until at least six months after it is made.

(7) An order may be varied from time to time, but not so as to include works otherthan those to which the recommendation relates or remove any terms specified in therecommendation, and may be revoked.


(9) In this section a “certified licensing scheme” means a licensing scheme certified forthe purposes of this section under section 143.


Royalty or other sum payable for rental of certain works

142 Royalty or other sum payable for rental of sound recording, film or computerprogram.

(1) An application to settle the royalty or other sum payable in pursuance of section 66(rental of sound recordings, films and computer programs) may be made to theCopyright Tribunal by the copyright owner or the person claiming to be treated aslicensed by him.

(2) The Tribunal shall consider the matter and make such order as it may determine to bereasonable in the circumstances.







(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunalshall consider the matter and make such order confirming or varying the original orderas it may determine to be reasonable in the circumstances.

(4) An application under subsection (3) shall not, except with the special leave of theTribunal, be made within twelve months from the date of the original order or of theorder on a previous application under that subsection.

(5) An order under subsection (3) has effect from the date on which it is made or suchlater date as may be specified by the Tribunal.

Certification of licensing schemes

143 Certification of licensing schemes.

(1) A person operating or proposing to operate a licensing scheme may apply to theSecretary of State to certify the scheme for the purposes of—

(a) section 35 (educational recording of broadcasts or cable programmes),(b) section 60 (abstracts of scientific or technical articles),(c) section 66 (rental of sound recordings, films and computer programs),(d) section 74 (sub-titled copies of broadcasts or cable programmes for people

who are deaf or hard of hearing), or(e) section 141 (reprographic copying of published works by educational

establishments).

(2) The Secretary of State shall by order made by statutory instrument certify the schemeif he is satisfied that it—

(a) enables the works to which it relates to be identified with sufficient certaintyby persons likely to require licences, and

(b) sets out clearly the charges (if any) payable and the other terms on whichlicences will be granted.

(3) The scheme shall be scheduled to the order and the certification shall come intooperation for the purposes of section 35, 60, 66, 74 or 141, as the case may be—

(a) on such date, not less than eight weeks after the order is made, as may bespecified in the order, or

(b) if the scheme is the subject of a reference under section 118 (reference ofproposed scheme), any later date on which the order of the Copyright Tribunalunder that section comes into force or the reference is withdrawn.

(4) A variation of the scheme is not effective unless a corresponding amendment of theorder is made; and the Secretary of State shall make such an amendment in the case ofa variation ordered by the Copyright Tribunal on a reference under section 118, 119or 120, and may do so in any other case if he thinks fit.

(5) The order shall be revoked if the scheme ceases to be operated and may be revokedif it appears to the Secretary of State that it is no longer being operated according toits terms.


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Powers exercisable in consequence of competition report

144 Powers exercisable in consequence of report of Monopolies and MergersCommission.

(1) Where the matters specified in a report of the Monopolies and Mergers Commissionas being those which in the Commission’s opinion operate, may be expected to operateor have operated against the public interest include—

(a) conditions in licences granted by the owner of copyright in a work restrictingthe use of the work by the licensee or the right of the copyright owner to grantother licences, or

(b) a refusal of a copyright owner to grant licences on reasonable terms,the powers conferred by Part I of Schedule 8 to the M18Fair Trading Act 1973 (powersexercisable for purpose of remedying or preventing adverse effects specified in reportof Commission) include power to cancel or modify those conditions and, instead orin addition, to provide that licences in respect of the copyright shall be available asof right.

(2) The references in sections 56(2) and 73(2) of that Act, and sections 10(2)(b) and 12(5)of the M19Competition Act 1980, to the powers specified in that Part of that Scheduleshall be construed accordingly.

(3) A Minister shall only exercise the powers available by virtue of this section if he issatisfied that to do so does not contravene any Convention relating to copyright towhich the United Kingdom is a party.

(4) The terms of a licence available by virtue of this section shall, in default of agreement,be settled by the Copyright Tribunal on an application by the person requiring thelicence; and terms so settled shall authorise the licensee to do everything in respectof which a licence is so available.

(5) Where the terms of a licence are settled by the Tribunal, the licence has effect fromthe date on which the application to the Tribunal was made.

Marginal CitationsM18 1973 c. 41.M19 1980 c. 21.


[F53Compulsory collective administration of certain rights]

Textual AmendmentsF53 S. 144A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 7 (with Pt. III)







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[F54144ACollective exercise of certain rights in relation to cable re-transmission.

(1) This section applies to the right of the owner of copyright in a literary, dramatic,musical or artistic work, sound recording or film to grant or refuse authorisation forcable re-transmission of a broadcast from another EEA member state in which thework is included. That right is referred to below as “cable re-transmission right".

(2) Cable re-transmission right may be exercised against a cable operator only througha licensing body.

(3) Where a copyright owner has not transferred management of his cable re-transmission right to a licensing body, the licensing body which manages rights ofthe same category shall be deemed to be mandated to manage his right. Where morethan one licensing body manages rights of that category, he may choose which ofthem is deemed to be mandated to manage his right.

(4) A copyright owner to whom subsection (3) applies has the same rights andobligations resulting from any relevant agreement between the cable operator andthe licensing body as have copyright owners who have transferred management oftheir cable re-transmission right to that licensing body.

(5) Any rights to which a copyright owner may be entitled by virtue of subsection (4)must be claimed within the period of three years beginning with the date of the cablere-transmission concerned.

(6) This section does not affect any rights exercisable by the maker of the broadcast,whether in relation to the broadcast or a work included in it.

(7) In this section— “cable operator" means a person providing a cable programmeservice; and

“cable re-transmission" means the reception and immediate re-transmission by wayof a cable programme service of a broadcast.]

Textual AmendmentsF54 S. 144A inserted (1.12.1996) by S.I. 1996/2967, reg. 7 (with Pt. III)

CHAPTER VIII

THE COPYRIGHT TRIBUNAL

Modifications etc. (not altering text)C47 Pt. I Ch. VIII (ss. 145-152) applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)

Pt. I Ch. VIII (ss. 145-152) applied (1.1.1998) by S.I. 1997/3032, reg. 25(2) (with Pt. IV)










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The Tribunal

145 The Copyright Tribunal.

(1) The Tribunal established under section 23 of the M20Copyright Act 1956 is renamedthe Copyright Tribunal.

(2) The Tribunal shall consist of a chairman and two deputy chairmen appointed by theLord Chancellor, after consultation with the Lord Advocate, and not less than two ormore than eight ordinary members appointed by the Secretary of State.

(3) A person is not eligible for appointment as chairman or deputy chairman [F55unless—(a) he has a 7 year general qualification, within the meaning of section 71 of the

Courts and Legal Services Act 1990;(b) he is an advocate or solicitor in Scotland of at least 7 years’ standing;(c) he is a member of the Bar of Northern Ireland or solicitor of the Supreme

Court of Northern Ireland of at least 7 years’ standing; or(d) he has held judicial office.]

Textual AmendmentsF55 Words substituted by Courts and Legal Services Act 1990 (c. 41, SIF 37), s. 71(2), Sch. 10 para. 73

Modifications etc. (not altering text)C48 S. 145: functions of the Lord Advocate transferred to the Secretary of State, and all property, rights

and liabilities to which the Lord Advocate is entitled or subject in connection with any such functiontransferred to the Secretary of State for Scotland (19.5.1999) by S.I. 1999/678, arts. 2, 3, Sch. (withart. 7)S. 145 modified (30.6.1999) by S.I. 1999/1748, art. 3, Sch. 1 para. 10

C49 S. 145(2): transfer of certain functions (1.7.1999) by S.I. 1999/1750, arts. 1, 2, Sch. 1(with art. 7); S.I.1998/3178, art. 3


146 Membership of the Tribunal.

(1) The members of the Copyright Tribunal shall hold and vacate office in accordancewith their terms of appointment, subject to the following provisions.

(2) A member of the Tribunal may resign his office by notice in writing to the Secretaryof State or, in the case of the chairman or a deputy chairman, to the Lord Chancellor.

(3) The Secretary of State or, in the case of the chairman or a deputy chairman, the LordChancellor may by notice in writing to the member concerned remove him from officeif—

(a) he has become bankrupt or made an arrangement with his creditors or, inScotland, his estate has been sequestrated or he has executed a trust deed forhis creditors or entered into a composition contract, or

(b) he is incapacitated by physical or mental illness,or if he is in the opinion of the Secretary of State or, as the case may be, the LordChancellor otherwise unable or unfit to perform his duties as member.











http://www.legislation.gov.uk/id/uksi/1999/1748/schedule/1/paragraph/10













(4) If a member of the Tribunal is by reason of illness, absence or other reasonable causefor the time being unable to perform the duties of his office, either generally or inrelation to particular proceedings, a person may be appointed to discharge his dutiesfor a period not exceeding six months at one time or, as the case may be, in relationto those proceedings.

(5) The appointment shall be made—(a) in the case of the chairman or deputy chairman, by the Lord Chancellor, who

shall appoint a person who would be eligible for appointment to that office,and

(b) in the case of an ordinary member, by the Secretary of State;and a person so appointed shall have during the period of his appointment, or inrelation to the proceedings in question, the same powers as the person in whose placehe is appointed.

(6) The Lord Chancellor shall consult the Lord Advocate before exercising his powersunder this section.

147 Financial provisions.

(1) There shall be paid to the members of the Copyright Tribunal such remuneration(whether by way of salaries or fees), and such allowances, as the Secretary of Statewith the approval of the Treasury may determine.

(2) The Secretary of State may appoint such staff for the Tribunal as, with the approvalof the Treasury as to numbers and remuneration, he may determine.

(3) The remuneration and allowances of members of the Tribunal, the remuneration of anystaff and such other expenses of the Tribunal as the Secretary of State with the approvalof the Treasury may determine shall be paid out of money provided by Parliament.

148 Constitution for purposes of proceedings.

(1) For the purposes of any proceedings the Copyright Tribunal shall consist of—(a) a chairman, who shall be either the chairman or a deputy chairman of the

Tribunal, and(b) two or more ordinary members.

(2) If the members of the Tribunal dealing with any matter are not unanimous, the decisionshall be taken by majority vote; and if, in such a case, the votes are equal the chairmanshall have a further, casting vote.

(3) Where part of any proceedings before the Tribunal has been heard and one or moremembers of the Tribunal are unable to continue, the Tribunal shall remain dulyconstituted for the purpose of those proceedings so long as the number of membersis not reduced to less than three.

(4) If the chairman is unable to continue, the chairman of the Tribunal shall—(a) appoint one of the remaining members to act as chairman, and(b) appoint a suitably qualified person to attend the proceedings and advise the

members on any questions of law arising.

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(5) A person is “suitably qualified” for the purposes of subsection (4)(b) if he is, or iseligible for appointment as, a deputy chairman of the Tribunal.

Jurisdiction and procedure

149 Jurisdiction of the Tribunal.

The function of the Copyright Tribunal is to hear and determine proceedings under—(a) section 118, 119, or 120 (reference of licensing scheme);(b) section 121 or 122 (application with respect to entitlement to licence under

licensing scheme);(c) section 125, 126 or 127 (reference or application with respect to licensing by

licensing body);[F56(cc) section 135D or 135E (application or reference with respect to use as of right

of sound recordings in broadcasts or cable programme services);](d) section 139 (appeal against order as to coverage of licensing scheme or

licence);(e) section 142 (application to settle royalty or other sum payable for rental of

sound recording, film or computer program);(f) section 144(4) (application to settle terms of copyright licence available as

of right);(g) section 190 (application to give consent for purposes of Part II on behalf of

performer);(h) paragraph 5 of Schedule 6 (determination of royalty or other remuneration to

be paid to trustees for the Hospital for Sick Children).

Textual AmendmentsF56 S. 149(cc) inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 175(2)

Modifications etc. (not altering text)C50 S. 149 amended by Broadcasting Act 1990 (c. 42, SIF 96), s. 176, Sch. 17 para. 7(1)

150 General power to make rules.

(1) The Lord Chancellor may, after consultation with the Lord Advocate, make rules forregulating proceedings before the Copyright Tribunal and, subject to the approval ofthe Treasury, as to the fees chargeable in respect of such proceedings.

(2) The rules may apply in relation to the Tribunal—(a) as respects proceedings in England and Wales, any of the provisions of the

M21Arbitration Act 1950;(b) as respects proceedings in Northern Ireland, any of the provisions of the

M22Arbitration Act (Northern Ireland) 1937;and any provisions so applied shall be set out in or scheduled to the rules.

(3) Provision shall be made by the rules—(a) prohibiting the Tribunal from entertaining a reference under section 118, 119

or 120 by a representative organisation unless the Tribunal is satisfied that

http://www.legislation.gov.uk/id/ukpga/1988/48/section/149/cc











the organisation is reasonably representative of the class of persons which itclaims to represent;

(b) specifying the parties to any proceedings and enabling the Tribunal to makea party to the proceedings any person or organisation satisfying the Tribunalthat they have a substantial interest in the matter; and

(c) requiring the Tribunal to give the parties to proceedings an opportunity to statetheir case, in writing or orally as the rules may provide.

(4) The rules may make provision for regulating or prescribing any matters incidental toor consequential upon any appeal from the Tribunal under section 152 (appeal to thecourt on point of law).

(5) Rules under this section shall be made by statutory instrument which shall be subjectto annulment in pursuance of a resolution of either House of Parliament.

Marginal CitationsM21 1950 c. 27.M22 1937 c. 8 (N.I.).

151 Costs, proof of orders, &c.

(1) The Copyright Tribunal may order that the costs of a party to proceedings before itshall be paid by such other party as the Tribunal may direct; and the Tribunal may taxor settle the amount of the costs, or direct in what manner they are to be taxed.

(2) A document purporting to be a copy of an order of the Tribunal and to be certified bythe chairman to be a true copy shall, in any proceedings, be sufficient evidence of theorder unless the contrary is proved.

(3) As respect proceedings in Scotland, the Tribunal has the like powers for securingthe attendance of witnesses and the production of documents, and with regard to theexamination of witnesses on oath, as an arbiter under a submission.


[F57151AAward of interest.

(1) Any of the following, namely—(a) a direction under section 123(3) so far as relating to a licence for

broadcasting a work or including a work in a cable programme service;(b) a direction under section 128(3) so far as so relating;(c) an order under section 135D(1); and(d) an order under section 135F confirming or varying an order under

section 135D(1),may award simple interest at such rate and for such period, beginning not earlier thanthe relevant date and ending not later than the date of the order, as the CopyrightTribunal thinks reasonable in the circumstances.

(2) In this section “the relevant date” means—



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(a) in relation to a direction under section 123(3), the date on which the referencewas made;

(b) in relation to a direction under section 128(3), the date on which the referenceor application was made;

(c) in relation to an order section 135D(1), the date on which the first paymentunder section 135C(2) became due; and

(d) in relation to an order under section 135F, the date on which the applicationwas made.]

Textual AmendmentsF57 S. 151A inserted (1.11.1996 with effect as mentioned in s. 139(3)) by 1996 c. 55, s. 139(2) (with s.

43(6)); S.I. 1996/2120, art. 5, Sch. 2

Appeals

152 Appeal to the court on point of law.

(1) An appeal lies on any point of law arising from a decision of the Copyright Tribunalto the High Court or, in the case of proceedings of the Tribunal in Scotland, to theCourt of Session.

(2) Provision shall be made by rules under section 150 limiting the time within which anappeal may be brought.

(3) Provision may be made by rules under that section—(a) for suspending, or authorising or requiring the Tribunal to suspend, the

operation of orders of the Tribunal in cases where its decision is appealedagainst;

(b) for modifying in relation to an order of the Tribunal whose operation issuspended the operation of any provision of this Act as to the effect of theorder;

(c) for the publication of notices or the taking of other steps for securing thatpersons affected by the suspension of an order of the Tribunal will be informedof its suspension.

CHAPTER IX

QUALIFICATION FOR AND EXTENT OF COPYRIGHT PROTECTION

Qualification for copyright protection

153 Qualification for copyright protection.

(1) Copyright does not subsist in a work unless the qualification requirements of thisChapter are satisfied as regards—

(a) the author (see section 154), or(b) the country in which the work was first published (see section 155), or









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(c) in the case of a broadcast or cable programme, the country from which thebroadcast was made or the cable programme was sent (see section 156).

(2) Subsection (1) does not apply in relation to Crown copyright or Parliamentarycopyright (see sections 163 to 166) or to copyright subsisting by virtue of section 168(copyright of certain international organisations).

(3) If the qualification requirements of this Chapter, or section 163, 165 or 168, are oncesatisfied in respect of a work, copyright does not cease to subsist by reason of anysubsequent event.

Modifications etc. (not altering text)C51 Ss. 153, 154 extended by S.I. 1989/988, art. 2(1)C52 S. 153 extended (1.7.1992) by S.I. 1992/1313, art.2C53 Ss. 153, 154 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts. 2, 3,4, 5, Sch. 4 (with art.

6)

154 Qualification by reference to author.

(1) A work qualifies for copyright protection if the author was at the material time aqualifying person, that is—

(a) a British citizen, a British Dependent Territories citizen, a British National(Overseas), a British Overseas citizen, a British subject or a British protectedperson within the meaning of the M23British Nationality Act 1981, or

(b) an individual domiciled or resident in the United Kingdom or another countryto which the relevant provisions of this Part extend, or

(c) a body incorporated under the law of a part of the United Kingdom or ofanother country to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application ofthis Part to countries to which it does not extend), a work also qualifies for copyrightprotection if at the material time the author was a citizen or subject of, an individualdomiciled or resident in, or a body incorporated under the law of, a country to whichthe Order relates.

(3) A work of joint authorship qualifies for copyright protection if at the material timeany of the authors satisfies the requirements of subsection (1) or (2); but where awork qualifies for copyright protection only under this section, only those authors whosatisfy those requirements shall be taken into account for the purposes of—

section 11(1) and (2) (first ownership of copyright; entitlement of author orauthor’s employer),section 12(1) and (2) (duration of copyright; dependent on life of authorunless work of unknown authorship), and section 9(4) (meaning of “unknownauthorship") so far as it applies for the purposes of section 12(2), andsection 57 (anonymous or pseudonymous works: acts permitted on assumptionsas to expiry of copyright or death of author).

(4) The material time in relation to a literary, dramatic, musical or artistic work is—(a) in the case of an unpublished work, when the work was made or, if the making

of the work extended over a period, a substantial part of that period;














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(b) in the case of a published work, when the work was first published or, if theauthor had died before that time, immediately before his death.

(5) The material time in relation to other descriptions of work is as follows—(a) in the case of a sound recording or film, when it was made;(b) in the case of a broadcast, when the broadcast was made;(c) in the case of a cable programme, when the programme was included in a

cable programme service;(d) in the case of the typographical arrangement of a published edition, when the

edition was first published.

Modifications etc. (not altering text)C54 Ss. 153, 154 extended by S.I. 1989/988, art. 2(1)C55 S. 154 extended (1.7.1992) by S.I. 1992/1313, art.2C56 Ss. 153, 154 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts. 2, 3,4, 5, Sch. 4 (with art.

6)


155 Qualification by reference to country of first publication.

(1) A literary, dramatic, musical or artistic work, a sound recording or film, or thetypographical arrangement of a published edition, qualifies for copyright protectionif it is first published—

(a) in the United Kingdom, or(b) in another country to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of thisPart to countries to which it does not extend), such a work also qualifies for copyrightprotection if it is first published in a country to which the Order relates.

(3) For the purposes of this section, publication in one country shall not be regarded asother than the first publication by reason of simultaneous publication elsewhere; andfor this purpose publication elsewhere within the previous 30 days shall be treated assimultaneous.

Modifications etc. (not altering text)C57 S. 155 extended with modifications by S.I. 1989/1293, arts. 2(1), 3, 5, 6, Schs. 1, 2, 3, 4C58 S. 155 extended (1.7.1992) by S.I. 1992/1313, art.2C59 S. 155 applied (with modifications) (4.5.1993) by S.I. 1993/942, arts.2, 3, 5, Sch. 4 (with art. 6)

Ss. 153-155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 5, Sch. 1, Sch. 5(as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)Ss. 153, 154, 155 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(1)(2), 3, 5, Sch.1, Sch. 2, Sch. 5 (as amended 22.4.2003 by S.I. 2003/774, arts. 2-5)




















































156 Qualification by reference to place of transmission.

(1) A broadcast qualifies for copyright protection if it is made from, and a cableprogramme qualifies for copyright protection if it is sent from, a place in—

(a) the United Kingdom, or(b) another country to which the relevant provisions of this Part extend.

(2) Where, or so far as, provision is made by Order under section 159 (application of thisPart to countries to which it does not extend), a broadcast or cable programme alsoqualifies for copyright protection if it is made from or, as the case may be, sent froma place in a country to which the Order relates.

Modifications etc. (not altering text)C60 S. 156 extended (1.7.1992) by S.I. 1992/1313, art.2C61 S. 156 applied (with modifications) (4.5.1993) by S.I. 1993/942, art.4, 5, Sch. 4 (with art. 6)

Ss. 153, 154, 156 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 4(1)(2)(5), 5 (asamended 22.4.2003 by S.I. 2003/774, arts. 2-5)

Extent and application of this Part

157 Countries to which this Part extends.

(1) This Part extends to England and Wales, Scotland and Northern Ireland.

(2) Her Majesty may by Order in Council direct that this Part shall extend, subject to suchexceptions and modifications as may be specified in the Order, to—

(a) any of the Channel Islands,(b) the Isle of Man, or(c) any colony.

(3) That power includes power to extend, subject to such exceptions and modificationsas may be specified in the Order, any Order in Council made under the followingprovisions of this Chapter.

(4) The legislature of a country to which this Part has been extended may modify or addto the provisions of this Part, in their operation as part of the law of that country, asthe legislature may consider necessary to adapt the provisions to the circumstancesof that country—

(a) as regards procedure and remedies, or(b) as regards works qualifying for copyright protection by virtue of a connection

with that country.

(5) Nothing in this section shall be construed as restricting the extent of paragraph 36of Schedule 1 (transitional provisions: dependent territories where the M24CopyrightAct 1956 or the M25Copyright Act 1911 remains in force) in relation to the law of adependent territory to which this Part does not extend.

Modifications etc. (not altering text)C62 S. 157(2)(c) extended (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 46(4), 47(2)(c)









http://www.legislation.gov.uk/id/uksi/1999/1751/article/4/1/2/5






http://www.legislation.gov.uk/id/ukpga/2010/24/section/47/2/c


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158 Countries ceasing to be colonies.

(1) The following provisions apply where a country to which this Part has been extendedceases to be a colony of the United Kingdom.

(2) As from the date on which it ceases to be a colony it shall cease to be regarded as acountry to which this Part extends for the purposes of—

(a) section 160(2)(a) (denial of copyright protection to citizens of countries notgiving adequate protection to British works), and

(b) sections 163 and 165 (Crown and Parliamentary copyright).

(3) But it shall continue to be treated as a country to which this Part extends for thepurposes of sections 154 to 156 (qualification for copyright protection) until—

(a) an Order in Council is made in respect of that country under section 159(application of this Part to countries to which it does not extend), or

(b) an Order in Council is made declaring that it shall cease to be so treated byreason of the fact that the provisions of this Part as part of the law of thatcountry have been repealed or amended.

(4) A statutory instrument containing an Order in Council under subsection (3)(b) shallbe subject to annulment in pursuance of a resolution of either House of Parliament.

159 Application of this Part to countries to which it does not extend.

(1) Her Majesty may by Order in Council make provision for applying in relation to acountry to which this Part does not extend any of the provisions of this Part specifiedin the Order, so as to secure that those provisions—

(a) apply in relation to persons who are citizens or subjects of that country or aredomiciled or resident there, as they apply to persons who are British citizensor are domiciled or resident in the United Kingdom, or

(b) apply in relation to bodies incorporated under the law of that country as theyapply in relation to bodies incorporated under the law of a part of the UnitedKingdom, or

(c) apply in relation to works first published in that country as they apply inrelation to works first published in the United Kingdom, or

(d) apply in relation to broadcasts made from or cable programmes sent fromthat country as they apply in relation to broadcasts made from or cableprogrammes sent from the United Kingdom.

(2) An Order may make provision for all or any of the matters mentioned in subsection (1)and may—

(a) apply any provisions of this Part subject to such exceptions and modificationsas are specified in the Order; and

(b) direct that any provisions of this Part apply either generally or in relation tosuch classes of works, or other classes of case, as are specified in the Order.







(3) Except in the case of a Convention country or another member State of the EuropeanEconomic Community, Her Majesty shall not make an Order in Council under thissection in relation to a country unless satisfied that provision has been or will be madeunder the law of that country, in respect of the class of works to which the Orderrelates, giving adequate protection to the owners of copyright under this Part.

(4) In subsection (3) “Convention country” means a country which is a party to aConvention relating to copyright to which the United Kingdom is also a party.

(5) A statutory instrument containing an Order in Council under this section shall besubject to annulment in pursuance of a resolution of either House of Parliament.

160 Denial of copyright protection to citizens of countries not giving adequateprotection to British works.

(1) If it appears to Her Majesty that the law of a country fails to give adequate protectionto British works to which this section applies, or to one or more classes of such works,Her Majesty may make provision by Order in Council in accordance with this sectionrestricting the rights conferred by this Part in relation to works of authors connectedwith that country.

(2) An Order in Council under this section shall designate the country concerned andprovide that, for the purposes specified in the Order, works first published after a datespecified in the Order shall not be treated as qualifying for copyright protection byvirtue of such publication if at that time the authors are—

(a) citizens or subjects of that country (not domiciled or resident in the UnitedKingdom or another country to which the relevant provisions of this Partextend), or

(b) bodies incorporated under the law of that country;and the Order may make such provision for all the purposes of this Part or for suchpurposes as are specified in the Order, and either generally or in relation to such classof cases as are specified in the Order, having regard to the nature and extent of thatfailure referred to in subsection (1).

(3) This section applies to literary, dramatic, musical and artistic works, sound recordingsand films; and “British works” means works of which the author was a qualifyingperson at the material time within the meaning of section 154.


Supplementary

161 Territorial waters and the continental shelf.

(1) For the purposes of this Part the territorial waters of the United Kingdom shall betreated as part of the United Kingdom.

(2) This Part applies to things done in the United Kingdom sector of the continental shelfon a structure or vessel which is present there for purposes directly connected with theexploration of the sea bed or subsoil or the exploitation of their natural resources asit applies to things done in the United Kingdom.

Copyright, Designs and Patents Act 1988 (c. 48)Part I – CopyrightChapter X – Miscellaneous and GeneralDocument Generated: 2020-11-25

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(3) The United Kingdom sector of the continental shelf means the areas designated byorder under section 1(7) of the M26Continental Shelf Act 1964.

Modifications etc. (not altering text)C63 Ss. 161, 162, 171(1)(3), 172-179 applied (1.12.1996) by S.I. 1996/2967, reg. 17(4) (with Pt. III)


162 British ships, aircraft and hovercraft.

(1) This Part applies to things done on a British ship, aircraft or hovercraft as it appliesto things done in the United Kingdom.

(2) In this section—“British ship” means a ship which is a British ship for the purposes of

the Merchant Shipping Acts (see section 2 of the M27Merchant Shipping Act1988) otherwise than by virtue of registration in a country outside the UnitedKingdom; and

“British aircraft” and “British hovercraft” mean an aircraft or hovercraftregistered in the United Kingdom.


CHAPTER X

MISCELLANEOUS AND GENERAL

Crown and Parliamentary copyright

163 Crown copyright.

(1) Where a work is made by Her Majesty or by an officer or servant of the Crown in thecourse of his duties—

(a) the work qualifies for copyright protection notwithstanding section 153(1)(ordinary requirement as to qualification for copyright protection), and

(b) Her Majesty is the first owner of any copyright in the work.

(2) Copyright in such a work is referred to in this Part as “Crown copyright”,notwithstanding that it may be, or have been, assigned to another person.

(3) Crown copyright in a literary, dramatic, musical or artistic work continues to subsist—(a) until the end of the period of 125 years from the end of the calendar year in

which the work was made, or(b) if the work is published commercially before the end of the period of 75 years

from the end of the calendar year in which it was made, until the end of the







Chapter X – Miscellaneous and GeneralDocument Generated: 2020-11-25



period of 50 years from the end of the calendar year in which it was first sopublished.

(4) In the case of a work of joint authorship where one or more but not all of the authorsare persons falling within subsection (1), this section applies only in relation to thoseauthors and the copyright subsisting by virtue of their contribution to the work.

(5) Except as mentioned above, and subject to any express exclusion elsewhere in thisPart, the provisions of this Part apply in relation to Crown copyright as to othercopyright.

(6) This section does not apply to a work if, or to the extent that, Parliamentary copyrightsubsists in the work (see sections 165 and 166).

164 Copyright in Acts and Measures.

(1) Her Majesty is entitled to copyright in every Act of Parliament or Measure of theGeneral Synod of the Church of England.

(2) The copyright subsists from Royal Assent until the end of the period of 50 years fromthe end of the calendar year in which Royal Assent was given.

(3) References in this Part to Crown copyright (except in section 163) include copyrightunder this section; and, except as mentioned above, the provisions of this Part applyin relation to copyright under this section as to other Crown copyright.

(4) No other copyright, or right in the nature of copyright, subsists in an Act or Measure.

165 Parliamentary copyright.

(1) Where a work is made by or under the direction or control of the House of Commonsor the House of Lords—

(a) the work qualifies for copyright protection notwithstanding section 153(1)(ordinary requirement as to qualification for copyright protection), and

(b) the House by whom, or under whose direction or control, the work is madeis the first owner of any copyright in the work, and if the work is made by orunder the direction or control of both Houses, the two Houses are joint firstowners of copyright.

(2) Copyright in such a work is referred to in this Part as “Parliamentary copyright”,notwithstanding that it may be, or have been, assigned to another person.

(3) Parliamentary copyright in a literary, dramatic, musical or artistic work continues tosubsist until the end of the period of 50 years from the end of the calendar year inwhich the work was made.

(4) For the purposes of this section, works made by or under the direction or control ofthe House of Commons or the House of Lords include—

(a) any work made by an officer or employee of that House in the course of hisduties, and

(b) any sound recording, film, live broadcast or live cable programme of theproceedings of that House;

but a work shall not be regarded as made by or under the direction or control of eitherHouse by reason only of its being commissioned by or on behalf of that House.


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(5) In the case of a work of joint authorship where one or more but not all of the authorsare acting on behalf of, or under the direction or control of, the House of Commonsor the House of Lords, this section applies only in relation to those authors and thecopyright subsisting by virtue of their contribution to the work.

(6) Except as mentioned above, and subject to any express exclusion elsewhere in thisPart, the provisions of this Part apply in relation to Parliamentary copyright as to othercopyright.

(7) The provisions of this section also apply, subject to any exceptions or modificationsspecified by Order in Council, to works made by or under the direction or control ofany other legislative body of a country to which this Part extends; and references inthis Part to “Parliamentary copyright” shall be construed accordingly.

(8) A statutory instrument containing an Order in Council under subsection (7) shall besubject to annulment in pursuance of a resolution of either House of Parliament.

Modifications etc. (not altering text)C64 S. 165 modified (6.5.1999) by S.I. 1999/676, art. 2

S. 165 modified (2.12.1999) by S.I. 1999/3146, arts. 1(1), 2; S.I. 1999/3208, art. 2

166 Copyright in Parliamentary Bills.

(1) Copyright in every Bill introduced into Parliament belongs, in accordance with thefollowing provisions, to one or both of the Houses of Parliament.

(2) Copyright in a public Bill belongs in the first instance to the House into which the Billis introduced, and after the Bill has been carried to the second House to both Housesjointly, and subsists from the time when the text of the Bill is handed in to the Housein which it is introduced.

(3) Copyright in a private Bill belongs to both Houses jointly and subsists from the timewhen a copy of the Bill is first deposited in either House.

(4) Copyright in a personal Bill belongs in the first instance to the House of Lords, andafter the Bill has been carried to the House of Commons to both Houses jointly, andsubsists from the time when it is given a First Reading in the House of Lords.

(5) Copyright under this section ceases—(a) on Royal Assent, or(b) if the Bill does not receive Royal Assent, on the withdrawal or rejection of

the Bill or the end of the Session:

Provided that, copyright in a Bill continues to subsist notwithstanding its rejection inany Session by the House of Lords if, by virtue of the Parliament Acts 1911 and 1949,it remains possible for it to be presented for Royal Assent in that Session.

(6) References in this Part to Parliamentary copyright (except in section 165) includecopyright under this section; and, except as mentioned above, the provisions ofthis Part apply in relation to copyright under this section as to other Parliamentarycopyright.












(7) No other copyright, or right in the nature of copyright, subsists in a Bill after copyrighthas once subsisted under this section; but without prejudice to the subsequentoperation of this section in relation to a Bill which, not having passed in one Session,is reintroduced in a subsequent Session.


[F58166ACopyright in Bills of the Scottish Parliament.

(1) Copyright in every Bill introduced into the Scottish Parliament belongs to theScottish Parliamentary Corporate Body.

(2) Copyright under this section subsists from the time when the text of the Bill is handedin to the Parliament for introduction—

(a) until the Bill receives Royal Assent, or(b) if the Bill does not receive Royal Assent, until it is withdrawn or rejected or

no further parliamentary proceedings may be taken in respect of it.


(4) No other copyright, or right in the nature of copyright, subsists in a Bill aftercopyright has once subsisted under this section; but without prejudice to thesubsequent operation of this section in relation to a Bill which, not having receivedRoyal Assent, is later reintroduced into the Parliament.]

Textual AmendmentsF58 S. 166A inserted (6.5.1999) by 1998 c. 46, s. 125(1), Sch. 8 para. 25(6); S.I. 1998/3178, art. 2(2), Sch.

3


[F59166BCopyright in Bills of the Northern Ireland Assembly.

(1) Copyright in every Bill introduced into the Northern Ireland Assembly belongs tothe Northern Ireland Assembly Commission.

(2) Copyright under this section subsists from the time when the text of the Bill is handedin to the Assembly for introduction—


no further proceedings of the Assembly may be taken in respect of it.

(3) References in this Part to Parliamentary copyright (except in section 165) includecopyright under this section; and, except as mentioned above, the provisions of









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this Part apply in relation to copyright under this section as to other Parliamentarycopyright.

(4) No other copyright, or right in the nature of copyright, subsists in a Bill aftercopyright has once subsisted under this section; but without prejudice to thesubsequent operation of this section in relation to a Bill which, not having receivedRoyal Assent, is later reintroduced into the Assembly.]

Textual AmendmentsF59 S. 166B inserted (2.12.1999) by 1998 c. 47, s. 99, Sch. 13 para. 8(6) (with s. 95); S.I. 1999/3209, art.

2, Sch.


[F60166CCopyright in proposed Measures of the National Assembly for Wales

(1) Copyright in every proposed Assembly Measure introduced into the NationalAssembly for Wales belongs to the National Assembly for Wales Commission.

(2) Copyright under this section subsists from the time when the text of the proposedAssembly Measure is handed in to the Assembly for introduction—

(a) until the proposed Assembly Measure is approved by Her Majesty inCouncil, or

(b) if the proposed Assembly Measure is not approved by Her Majesty inCouncil, until it is withdrawn or rejected or no further proceedings of theAssembly may be taken in respect of it.


(4) No other copyright, or right in the nature of copyright, subsists in a proposedAssembly Measure after copyright has once subsisted under this section; but withoutprejudice to the subsequent operation of this section in relation to a proposedAssembly Measure which, not having been approved by Her Majesty in Council, islater reintroduced into the Assembly.

Textual AmendmentsF60 Ss. 166C, 166D inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 28

(with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certainprovisions to come into force for specified purposes immediately after the end of "the initialperiod" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss.46, 161(1)(4)(5) of the amending Act.


















166D Copyright in Bills of the National Assembly for Wales

(1) Copyright in every Bill introduced into the National Assembly for Wales belongs tothe National Assembly for Wales Commission.

(2) Copyright under this section subsists from the time when the text of the Bill is handedin to the Assembly for introduction—


no further proceedings of the Assembly may be taken in respect of it.


(4) No other copyright, or right in the nature of copyright, subsists in a Bill aftercopyright has once subsisted under this section; but without prejudice to thesubsequent operation of this section in relation to a Bill which, not having receivedRoyal Assent, is later reintroduced into the Assembly.]

Textual AmendmentsF60 Ss. 166C, 166D inserted by Government of Wales Act 2006 (c. 32), s. 160(1), Sch. 10 para. 28

(with Sch. 11 para. 22), the amending provision coming into force immediately after "the 2007election" (held on 3.5.2007) subject to s. 161(4)(5) of the amending Act, which provides for certainprovisions to come into force for specified purposes immediately after the end of "the initialperiod" (which ended with the day of the first appointment of a First Minister on 25.5.2007) - see ss.46, 161(1)(4)(5) of the amending Act.

167 Houses of Parliament: supplementary provisions with respect to copyright.

(1) For the purposes of holding, dealing with and enforcing copyright, and in connectionwith all legal proceedings relating to copyright, each House of Parliament shall betreated as having the legal capacities of a body corporate, which shall not be affectedby a prorogation or dissolution.

(2) The functions of the House of Commons as owner of copyright shall be exercised bythe Speaker on behalf of the House; and if so authorised by the Speaker, or in case of avacancy in the office of Speaker, those functions may be discharged by the Chairmanof Ways and Means or a Deputy Chairman.

(3) For this purpose a person who on the dissolution of Parliament was Speaker of theHouse of Commons, Chairman of Ways and Means or a Deputy Chairman maycontinue to act until the corresponding appointment is made in the next Session ofParliament.

(4) The functions of the House of Lords as owner of copyright shall be exercised by theClerk of the Parliaments on behalf of the House; and if so authorised by him, or in






121



case of a vacancy in the office of Clerk of the Parliaments, those functions may bedischarged by the Clerk Assistant or the Reading Clerk.

(5) Legal proceedings relating to copyright—(a) shall be brought by or against the House of Commons in the name of “The

Speaker of the House of Commons”; and(b) shall be brought by or against the House of Lords in the name of “The Clerk

of the Parliaments”.

Other miscellaneous provisions

168 Copyright vesting in certain international organisations.

(1) Where an original literary, dramatic, musical or artistic work—(a) is made by an officer or employee of, or is published by, an international

organisation to which this section applies, and(b) does not qualify for copyright protection under section 154 (qualification by

reference to author) or section 155 (qualification by reference to country offirst publication),

copyright nevertheless subsists in the work by virtue of this section and theorganisation is first owner of that copyright.

(2) The international organisations to which this section applies are those as to which HerMajesty has by Order in Council declared that it is expedient that this section shouldapply.

(3) Copyright of which an international organisation is first owner by virtue of this sectioncontinues to subsist until the end of the period of 50 years from the end of the calendaryear in which the work was made or such longer period as may be specified by HerMajesty by Order in Council for the purpose of complying with the internationalobligations of the United Kingdom.

(4) An international organisation to which this section applies shall be deemed to have,and to have had at all material times, the legal capacities of a body corporate for thepurpose of holding, dealing with and enforcing copyright and in connection with alllegal proceedings relating to copyright.


169 Folklore, &c.: anonymous unpublished works.

(1) Where in the case of an unpublished literary, dramatic, musical or artistic work ofunknown authorship there is evidence that the author (or, in the case of a joint work,any of the authors) was a qualifying individual by connection with a country outsidethe United Kingdom, it shall be presumed until the contrary is proved that he was sucha qualifying individual and that copyright accordingly subsists in the work, subject tothe provisions of this Part.

(2) If under the law of that country a body is appointed to protect and enforce copyright insuch works, Her Majesty may by Order in Council designate that body for the purposesof this section.





(3) A body so designated shall be recognised in the United Kingdom as having authorityto do in place of the copyright owner anything, other than assign copyright, whichit is empowered to do under the law of that country; and it may, in particular, bringproceedings in its own name.


(5) In subsection (1) a “qualifying individual” means an individual who at the materialtime (within the meaning of section 154) was a person whose works qualified underthat section for copyright protection.

(6) This section does not apply if there has been an assignment of copyright in the workby the author of which notice has been given to the designated body; and nothing inthis section affects the validity of an assignment of copyright made, or licence granted,by the author or a person lawfully claiming under him.

Transitional provisions and savings

170 Transitional provisions and savings.

Schedule 1 contains transitional provisions and savings relating to works made, andacts or events occurring, before the commencement of this Part, and otherwise withrespect to the operation of the provisions of this Part.

171 Rights and privileges under other enactments or the common law.

(1) Nothing in this Part affects—(a) any right or privilege of any person under any enactment (except where the

enactment is expressly repealed, amended or modified by this Act);(b) any right or privilege of the Crown subsisting otherwise than under an

enactment;(c) any right or privilege of either House of Parliament;(d) the right of the Crown or any person deriving title from the Crown to sell,

use or otherwise deal with articles forfeited under the laws relating to customsand excise;

(e) the operation of any rule of equity relating to breaches of trust or confidence.

(2) Subject to those savings, no copyright or right in the nature of copyright shall subsistotherwise than by virtue of this Part or some other enactment in that behalf.

(3) Nothing in this Part affects any rule of law preventing or restricting the enforcementof copyright, on grounds of public interest or otherwise.

(4) Nothing in this Part affects any right of action or other remedy, whether civil orcriminal, available otherwise than under this Part in respect of acts infringing any ofthe rights conferred by Chapter IV (moral rights).

(5) The savings in subsection (1) have effect subject to section 164(4) and section 166(7)(copyright in Acts, Measures and Bills: exclusion of other rights in the nature ofcopyright).


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Interpretation

172 General provisions as to construction.

(1) This Part restates and amends the law of copyright, that is, the provisions of theM28Copyright Act 1956, as amended.

(2) A provision of this Part which corresponds to a provision of the previous law shallnot be construed as departing from the previous law merely because of a change ofexpression.

(3) Decisions under the previous law may be referred to for the purpose of establishingwhether a provision of this Part departs from the previous law, or otherwise forestablishing the true construction of this Part.




[F61172AMeaning of EEA national and EEA state.

(1) In this Part—“EEA national” means a national of an EEA state; and“EEA state” means a state which is a contracting party to the EEA Agreement.

(2) References in this Part to a person being an EEA national shall be construed inrelation to a body corporate as references to its being incoporated under the law ofan EEA state.

(3) The “EEA Agreement” means the Agreement on the European Economic Areasigned at Oporto on 2nd May 1992, as adjusted by the Protocol signed at Brusselson 17th March 1993.]









http://www.legislation.gov.uk/id/ukpga/1988/48/section/172A








173 Construction of references to copyright owner.

(1) Where different persons are (whether in consequence of a partial assignment orotherwise) entitled to different aspects of copyright in a work, the copyright ownerfor any purpose of this Part is the person who is entitled to the aspect of copyrightrelevant for that purpose.

(2) Where copyright (or any aspect of copyright) is owned by more than one person jointly,references in this Part to the copyright owner are to all the owners, so that, in particular,any requirement of the licence of the copyright owner requires the licence of all ofthem.


174 Meaning of “educational establishment" and related expressions.

(1) The expression “educational establishment" in a provision of this Part means—(a) any school, and(b) any other description of educational establishment specified for the purposes

of this Part, or that provision, by order of the Secretary of State.

(2) The Secretary of State may by order provide that the provisions of this Part relatingto educational establishments shall apply, with such modifications and adaptations asmay be specified in the order, in relation to teachers who are employed by a localeducation authority to give instruction elsewhere to pupils who are unable to attendan educational establishment.

(3) In subsection (1)(a) “school”—(a) in relation to England and Wales, has the same meaning as in the M29Education

Act 1944;(b) in relation to Scotland, has the same meaning as in the M30Education (Scotland)

Act 1962, except that it includes an approved school within the meaning ofthe M31Social Work (Scotland) Act 1968; and

(c) in relation to Northern Ireland, has the same meaning as in the M32Educationand Libraries (Northern Ireland) Order 1986.

(4) An order under subsection (1)(b) may specify a description of educationalestablishment by reference to the instruments from time to time in force under anyenactment specified in the order.

(5) In relation to an educational establishment the expressions “teacher" and “pupil" inthis Part include, respectively, any person who gives and any person who receivesinstruction.

(6) References in this Part to anything being done “on behalf of" an educationalestablishment are to its being done for the purposes of that establishment by anyperson.






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Marginal CitationsM29 1944 c. 31.M30 1962 c. 47.M31 1968 c. 49.M32 S.I. 1986/594 (N.I.3).

175 Meaning of publication and commercial publication.

(1) In this Part “publication”, in relation to a work—(a) means the issue of copies to the public, and(b) includes, in the case of a literary, dramatic, musical or artistic work, making

it available to the public by means of an electronic retrieval system;and related expressions shall be construed accordingly.

(2) In this Part “commercial publication”, in relation to a literary, dramatic, musical orartistic work means—

(a) issuing copies of the work to the public at a time when copies made in advanceof the receipt of orders are generally available to the public, or

(b) making the work available to the public by means of an electronic retrievalsystem;

and related expressions shall be construed accordingly.

(3) In the case of a work of architecture in the form of a building, or an artistic workincorporated in a building, construction of the building shall be treated as equivalentto publication of the work.

(4) The following do not constitute publication for the purposes of this Part and referencesto commercial publication shall be construed accordingly—

(a) in the case of a literary, dramatic or musical work—(i) the performance of the work, or

(ii) the broadcasting of the work or its inclusion in a cable programmeservice (otherwise than for the purposes of an electronic retrievalsystem);

(b) in the case of an artistic work—(i) the exhibition of the work,

(ii) the issue to the public of copies of a graphic work representing, or ofphotographs of, a work of architecture in the form of a building or amodel for a building, a sculpture or a work of artistic craftsmanship,

(iii) the issue to the public of copies of a film including the work, or(iv) the broadcasting of the work or its inclusion in a cable programme

service (otherwise than for the purposes of an electronic retrievalsystem);

(c) in the case of a sound recording or film—(i) the work being played or shown in public, or

(ii) the broadcasting of the work or its inclusion in a cable programmeservice.




http://www.legislation.gov.uk/id/nisi/1986/594





(5) References in this Part to publication or commercial publication do not includepublication which is merely colourable and not intended to satisfy the reasonablerequirements of the public.

(6) No account shall be taken for the purposes of this section of any unauthorised act.


176 Requirement of signature: application in relation to body corporate.

(1) The requirement in the following provisions that an instrument be signed by or onbehalf of a person is also satisfied in the case of a body corporate by the affixing ofits seal—

section 78(3)(b) (assertion by licensor of right to identification of author in caseof public exhibition of copy made in pursuance of the licence),section 90(3) (assignment of copyright),section 91(1) (assignment of future copyright),section 92(1) (grant of exclusive licence).

(2) The requirement in the following provisions that an instrument be signed by a personis satisfied in the case of a body corporate by signature on behalf of the body or bythe affixing of its seal—

section 78(2)(b) (assertion by instrument in writing of right to have authoridentified),section 87(2) (waiver of moral rights).


177 Adaptation of expressions for Scotland.

In the application of this Part to Scotland—“account of profits” means accounting and payment of profits;“accounts” means count, reckoning and payment;“assignment” means assignation;“costs” means expenses;“defendant” means defender;“delivery up” means delivery;“estoppel” means personal bar;“injunction” means interdict;“interlocutory relief” means interim remedy; and“plaintiff” means pursuer.








127




178 Minor definitions.

In this Part—“article", in the context of an article in a periodical, includes an item of anydescription;“business"includes a trade or profession;“collective work” means—

(a) a work of joint authorship, or(b) a work in which there are distinct contributions by different authors or in which

works or parts of works of different authors are incorporated;“computer-generated”, in relation to a work, means that the work is

generated by computer in circumstances such that there is no human author ofthe work;

“country" includes any territory;“the Crown" includes the Crown in right of Her Majesty’s Government in

Northern Ireland or in any country outside the United Kingdom to which thisPart extends;

“electronic” means actuated by electric, magnetic, electro-mechanicalenergy, and “in electronic form” means in a form usable only by electronicmeans;

“employed", “employee", “employer", and “employment" refer toemployment under a contract of service or of apprenticeship;

“facsimile copy" includes a copy which is reduced or enlarged in scale;“international organisation” means an organisation the members of which

include one or more states;“judicial proceedings"includes proceedings before any court, tribunal or

person having authority to decide any matter affecting a person’s legal rightsor liabilities;

“parliamentary proceedings" includes proceedings of the Northern IrelandAssembly or of the European Parliament;

“rental” means any arrangement under which a copy of a work is madeavailable—

(a) for payment (in money or money’s worth), or(b) in the course of a business, as part of services or amenities for which payment

is made,on terms that it will or may be returned;“reprographic copy" and “reprographic copying" refer to copying by means of areprographic process;“reprographic process” means a process—

(a) for making facsimile copies, or(b) involving the use of an appliance for making multiple copies,and includes, in relation to a work held in electronic form, any copying byelectronic means, but does not include the making of a film or sound recording;








“sufficient acknowledgement” means an acknowledgement identifying the workin question by its title or other description, and identifying the author unless—

(a) in the case of a published work, it is published anonymously;(b) in the case of an unpublished work, it is not possible for a person to ascertain

the identity of the author by reasonable inquiry;“sufficient disclaimer”, in relation to an act capable of infringing the right

conferred by section 80 (right to object to derogatory treatment of work), meansa clear and reasonably prominent indication—

(a) given at the time of the act, and(b) if the author or director is then identified, appearing along with the

identification,that the work has been subjected to treatment to which the author or director hasnot consented,“telecommunications system” means a system for conveying visual images,sounds or other information by electronic means;“typeface" includes an ornamental motif used in printing;“unauthorised”, as regards anything done in relation to a work, means doneotherwise than—

(a) by or with the licence of the copyright owner, or(b) if copyright does not subsist in the work, by or with the licence of the author

or, in a case where section 11(2) would have applied, the author’s employer or,in either case, persons lawfully claiming under him, or

(c) in pursuance of section 48 (copying, &c of certain material by the Crown);“wireless telegraphy” means the sending of electro-magnetic energy over

paths not provided by a material substance constructed or arranged for thatpurpose;

“writing" includes any form of notation or code, whether by hand orotherwise and regardless of the method by which, or medium in or on which,it is recorded, and “written" shall be construed accordingly

179 Index of defined expressions

The following Table shows provisions defining or otherwise explaining expressionsused in this Part (other than provisions defining or explaining an expression used onlyin the same section)—

account of profits and accounts (inScotland)

section 177

acts restricted by copyright section 16(1)adaptation section 21(3)archivist (in sections 37 to 43) section 37(6)article (in a periodical) section 178artistic work section 4(1)assignment (in Scotland) section 177author sections 9 and 10(3)broadcast (and related expressions) section 6


129



building section 4(2)business section 178cable programme, cable programmeservice (and related expressions)

section 7

collective work section 178commencement (in Schedule 1) paragraph 1(2) of that Schedulecommercial publication section 175computer-generated section 178copy and copying section 17copyright (generally) section 1copyright (in Schedule 1) paragraph 2(2) of that Schedulecopyright owner sections 101(2) and 173Copyright Tribunal section 145copyright work section 1(2)costs (in Scotland) section 177country section 178the Crown section 178Crown copyright sections 163(2) and 164(3)defendant (in Scotland) section 177delivery up (in Scotland) section 177dramatic work section 3(1)educational establishment sections 174(1) to (4)electronic and electronic form section 178employed, employee, employer andemployment

section 178

exclusive licence section 92(1)existing works (in Schedule 1) paragraph 1(3) of that Schedulefacsimile copy section 178film section 5future copyright section 91(2)general licence (in sections 140 and 141) section 140(7)graphic work section 4(2)infringing copy section 27injunction (in Scotland) section 177interlocutory relief (in Scotland) section 177international organisation section 178





issue of copies to the public section 18(2)joint authorship (work of) sections 10(1) and (2)judicial proceedings section 178librarian (in sections 37 to 43) section 37(6)licence (in sections 125 to 128) section 124licence of copyright owner sections 90(4), 91(3) and 173licensing body (in Chapter VII) section 116(2)licensing scheme (generally) section 116(1)licensing scheme (in sections 118 to 121) section 117literary work section 3(1)made (in relation to a literary, dramatic ormusical work)

section 3(2)

musical work section 3(1)[F62needletime] [F62section 135A]the new copyright provisions (inSchedule 1)

paragraph 1(1) of that Schedule

the 1911 Act (in Schedule 1) paragraph 1(1) of that Schedulethe 1956 Act (in Schedule 1) paragraph 1(1) of that Scheduleon behalf of (in relation to an educationalestablishment)

section 174(5)

Parliamentary copyright sections 165(2) and (7) and 166(6)parliamentary proceedings section 178performance section 19(2)photograph section 4(2)plaintiff (in Scotland) section 177prescribed conditions (in sections 38 to43)

section 37(1)(b)

prescribed library or archive (in sections38 to 43)

section 37(1)(a)

programme (in the context ofbroadcasting)

section 6(3)

prospective owner (of copyright) section 91(2)publication and related expressions section 175published edition (in the contextof copyright in the typographicalarrangement)

section 8

pupil section 174(5)rental section 178

Copyright, Designs and Patents Act 1988 (c. 48)Part II – Rights in performancesChapter X – Miscellaneous and GeneralDocument Generated: 2020-11-25

131



reprographic copies and repographiccopying

section 178

reprographic process section 178sculpture section 4(2)signed section 176sound recording [F63sections 5 and 135A]sufficient acknowledgement section 178sufficient disclaimer section 178teacher section 174(5)telecommunications system section 178[F62terms of payment] [F62section 135A]typeface section 178unauthorised (as regards things done inrelation to a work)

section 178

unknown (in relation to the author of awork)

section 9(5)

unknown authorship (work of) section 9(4)wireless telegraphy section 178work (in Schedule 1) paragraph 2(1) of that Schedulework of more than one author (in ChapterVII)

section 116(4)

writing and written section 178

Textual AmendmentsF62 Words inserted by Broadcasting Act 1990 (c.42, SIF 96), s. 175(3)F63 Words substituted by Broadcasting Act 1990 (c.42, SIF 96), s. 175(3)

PART II

RIGHTS IN PERFORMANCES

X1 Introductory

Editorial InformationX1 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights", "Chapter 3

Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" in Pt. II on1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks the continuityof historical versions of the existing provisions which are now brought under those new headings.





132 Copyright, Designs and Patents Act 1988 (c. 48)Part II – Rights in performances




180 Rights conferred on performers and persons having recording rights.

(1) This Part confers rights—(a) on a performer, by requiring his consent to the exploitation of his

performances (see sections 181 to 184), and(b) on a person having recording rights in relation to a performance, in relation

to recordings made without his consent or that of the performer (see sections185 to 188),

and creates offences in relation to dealing with or using illicit recordings and certainother related acts (see sections 198 and 201).

(2) In this Part — “performance” means —(a) a dramatic performance (which includes dance and mime),(b) a musical performance,(c) a reading or recitation of a literary work, or(d) a performance of a variety act or any similar presentation,

which is, or so far as it is, a live performance given by one or more individuals; and“recording”, in relation to a performance, means a film or sound recording—

(a) made directly from the live performance,(b) made from a broadcast of, or cable programme including, the performance, or(c) made, directly or indirectly, from another recording of the performance.

(3) The rights conferred by this Part apply in relation to performances taking placebefore the commencement of this Part; but no act done before commencement, orin pursuance of arrangements made before commencement, shall be regarded asinfringing those rights.

(4) The rights conferred by this Part are independent of—(a) any copyright in, or moral rights relating to, any work performed or any

film or sound recording of, or broadcast or cable programme including, theperformance, and

(b) any other right or obligation arising otherwise than under this Part.

Performers’ rights

181 X2 Qualifying performances.

A performance is a qualifying performance for the purposes of the provisions of thisPart relating to performers’ right if it is given by a qualifying individual (as definedin section 206) or takes place in a qualifying country (as so defined).




133



182 Consent required for recording or live live transmission of performance.

(1) A performer’s rights are infringed by a person who, without his consent—(a) makes, otherwise than for his private and domestic use, a recording of the

whole or any substantial part of a qualifying performance, or(b) broadcasts live, or includes live in a cable programme service, the whole or

any substantial part of a qualifying performance.

(2) In an action for infringement of a performer’s rights brought by virtue of this sectiondamages shall not be awarded against a defendant who shows that at the time of theinfringement he believed on reasonable grounds that consent had been given.


[F64182AConsent required for copying of recording.

(1) A performer’s rights are infringed by a person who, without his consent, makes,otherwise than for his private and domestic use, a copy of a recording of the wholeor any substantial part of a qualifying performance.

(2) It is immaterial whether the copy is made directly or indirectly.

(3) The right of a performer under this section to authorise or prohibit the making ofsuch copies is referred to in this Part as “reproduction right".]



[F65182BX3 Consent required for issue of copies to public.

(1) A performer’s rights are infringed by a person who, without his consent, issues tothe public copies of a recording of the whole or any substantial part of a qualifyingperformance.

(2) References in this Part to the issue to the public of copies of a recording are to—(a) the act of putting into circulation in the EEA copies not previously put into

circulation in the EEA by or with the consent of the performer, or(b) the act of putting into circulation outside the EEA copies not previously put

into circulation in the EEA or elsewhere.

(3) References in this Part to the issue to the public of copies of a recording do notinclude—

(a) any subsequent distribution, sale, hiring or loan of copies previously put intocirculation (but see section 182C: consent required for rental or lending), or

(b) any subsequent importation of such copies into the United Kingdom oranother EEA state,









except so far as paragraph (a) of subsection (2) applies to putting into circulationin the EEA copies previously put into circulation outside the EEA.

(4) References in this Part to the issue of copies of a recording of a performance includethe issue of the original recording of the live performance.

(5) The right of a performer under this section to authorise or prohibit the issue of copiesto the public is referred to in this Part as “distribution right".]



Textual AmendmentsF65 S. 182B inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III)


[F66182CConsent required for rental or lending of copies to public.

(1) A performer’s rights are infringed by a person who, without his consent, rents orlends to the public copies of a recording of the whole or any substantial part of aqualifying performance.

(2) In this Part, subject to the following provisions of this section—(a) “rental" means making a copy of a recording available for use, on terms that

it will or may be returned, for direct or indirect economic or commercialadvantage, and

(b) “lending" means making a copy of a recording available for use, on termsthat it will or may be returned, otherwise than for direct or indirect economicor commercial advantage, through an establishment which is accessible tothe public.

(3) The expressions “rental" and “lending" do not include—(a) making available for the purpose of public performance, playing or showing

in public, broadcasting or inclusion in a cable programme service;(b) making available for the purpose of exhibition in public; or(c) making available for on-the-spot reference use.

(4) The expression “lending" does not include making available between establishmentswhich are accessible to the public.

(5) Where lending by an establishment accessible to the public gives rise to a paymentthe amount of which does not go beyond what is necessary to cover the operatingcosts of the establishment, there is no direct or indirect economic or commercialadvantage for the purposes of this section.

http://www.legislation.gov.uk/id/ukpga/1988/48/section/182B





135



(6) References in this Part to the rental or lending of copies of a recording of aperformance include the rental or lending of the original recording of the liveperformance.

(7) In this Part—

“rental right" means the right of a performer under this section to authorise or prohibitthe rental of copies to the public, and

“lending right" means the right of a performer under this section to authorise orprohibit the lending of copies to the public.]

Textual AmendmentsF66 S. 182C inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III)


X4182CAConsent required for making available to the public

(1) A performer’s rights are infringed by a person who, without his consent, makesavailable to the public a recording of the whole or any substantial part of a qualifyingperformance by electronic transmission in such a way that members of the publicmay access the recording from a place and at a time individually chosen by them.

(2) The right of a performer under this section to authorise or prohibit the makingavailable to the public of a recording is referred to in this Part as “making availableright.




[F67182DRight to equitable remuneration for exploitation of sound recording.

(1) Where a commercially published sound recording of the whole or any substantialpart of a qualifying performance—

(a) is played in public, or(b) is included in a broadcast or cable programme service,

http://www.legislation.gov.uk/id/ukpga/1988/48/section/182C








the performer is entitled to equitable remuneration from the owner of the copyrightin the sound recording.

(2) The right to equitable remuneration under this section may not be assigned by theperformer except to a collecting society for the purpose of enabling it to enforce theright on his behalf.


(3) The amount payable by way of equitable remuneration is as agreed by or on behalfof the persons by and to whom it is payable, subject to the following provisions.

(4) In default of agreement as to the amount payable by way of equitable remuneration,the person by or to whom it is payable may apply to the Copyright Tribunal todetermine the amount payable.

(5) A person to or by whom equitable remuneration is payable may also apply to theCopyright Tribunal—

(a) to vary any agreement as to the amount payable, or(b) to vary any previous determination of the Tribunal as to that matter;

but except with the special leave of the Tribunal no such application may be madewithin twelve months from the date of a previous determination.


(6) On an application under this section the Tribunal shall consider the matter and makesuch order as to the method of calculating and paying equitable remuneration asit may determine to be reasonable in the circumstances, taking into account theimportance of the contribution of the performer to the sound recording.

(7) An agreement is of no effect in so far as it purports—(a) to exclude or restrict the right to equitable remuneration under this section, or(b) to prevent a person questioning the amount of equitable remuneration or to

restrict the powers of the Copyright Tribunal under this section.]

Textual AmendmentsF67 S. 182D inserted (1.12.1996) by S.I. 1996/2967, reg. 20(2) (with Pt. III)

183 Infringement of performer’s rights by use of recording made without consent.

A performer’s rights are infringed by a person who, without his consent—(a) shows or plays in public the whole or any substantial part of a qualifying

performance, or(b) broadcasts or includes in a cable programme service the whole or any

substantial part of a qualifying performance,by means of a recording which was, and which that person knows or has reason tobelieve was, made without the performer’s consent.

http://www.legislation.gov.uk/id/ukpga/1988/48/section/182D





137



184 X5 Infringement of performer’s rights by importing, possessing or dealing withillicit recording.

(1) A performer’s rights are infringed by a person who, without his consent—(a) imports into the United Kingdom otherwise than for his private and domestic

use, or(b) in the course of a business possesses, sells or lets for hire, offers or exposes

for sale or hire, or distributes,a recording of a qualifying performance which is, and which that person knows or hasreason to believe is, an illicit recording.

(2) Where in an action for infringement of a performer’s rights brought by virtue of thissection a defendant shows that the illicit recording was innocently acquired by himor a predecessor in title of his, the only remedy available against him in respect ofthe infringement is damages not exceeding a reasonable payment in respect of the actcomplained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the recordingdid not know and had no reason to believe that it was an illicit recording.



X6 Rights of person having recording rights



185 X7 Exclusive recording contracts and persons having recording rights.

(1) In this Part an “exclusive recording contract” means a contract between a performerand another person under which that person is entitled to the exclusion of allother persons (including the performer) to make recordings of one or more of hisperformances with a view to their commercial exploitation.

(2) References in this Part to a “person having recording rights”, in relation to aperformance, are (subject to subsection (3)) to a person—

(a) who is party to and has the benefit of an exclusive recording contract to whichthe performance is subject, or

(b) to whom the benefit of such a contract has been assigned,and who is a qualifying person.





(3) If a performance is subject to an exclusive recording contract but the person mentionedin subsection (2) is not a qualifying person, references in this Part to a “person havingrecording rights” in relation to the performance are to any person—

(a) who is licensed by such a person to make recordings of the performance witha view to their commercial exploitation, or

(b) to whom the benefit of such a licence has been assigned,and who is a qualifying person.

(4) In this section “with a view to commercial exploitation” means with a view to therecordings being sold or let for hire, or shown or played in public.



186 Consent required for recording of performance subject to exclusive contract.

(1) A person infringes the rights of a person having recording rights in relation to aperformance who, without his consent or that of the performer, makes a recording ofthe whole or any substantial part of the performance, otherwise than for his privateand domestic use.

(2) In an action for infringement of those rights brought by virtue of this section damagesshall not be awarded against a defendant who shows that at the time of the infringementhe believed on reasonable grounds that consent had been given.

187 Infringement of recording rights by use of recording made without consent.

(1) A person infringes the rights of a person having recording rights in relation to aperformance who, without his consent or, in the case of a qualifying performance, thatof the performer—

(a) shows or plays in public the whole or any substantial part of the performance,or

(b) broadcasts or includes in a cable programme service the whole or anysubstantial part of the performance,

by means of a recording which was, and which that person knows or has reason tobelieve was, made without the appropriate consent.

(2) The reference in subsection (1) to “the appropriate consent” is to the consent of—(a) the performer, or(b) the person who at the time the consent was given had recording rights in

relation to the performance (or, if there was more than one such person, ofall of them).


139



188 X8 Infringement of recording rights by importing, possessing or dealing withillicit recording.

(1) A person infringes the rights of a person having recording rights in relation to aperformance who, without his consent or, in the case of a qualifying performance, thatof the performer—

(a) imports into the United Kingdom otherwise than for his private and domesticuse, or

(b) in the course of a business possesses, sells or lets for hire, offers or exposesfor sale or hire, or distributes,

a recording of the performance which is, and which that person knows or has reasonto believe is, an illicit recording.

(2) Where in an action for infringement of those rights brought by virtue of this sectiona defendant shows that the illicit recording was innocently acquired by him or apredecessor in title of his, the only remedy available against him in respect of theinfringement is damages not exceeding a reasonable payment in respect of the actcomplained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the recordingdid not know and had no reason to believe that it was an illicit recording.



X9 Exceptions to rights conferred



189 X10 Acts permitted notwithstanding rights conferred by this Part.

The provisions of Schedule 2 specify acts which may be done notwithstanding therights conferred by this Part, being acts which correspond broadly to certain of thosespecified in Chapter III of Part I (acts permitted notwithstanding copyright).







190 Power of tribunal to give consent on behalf of performer in certain cases.

(1) The Copyright Tribunal may, on the application of a person wishing to make arecording from a previous recording of a performance, give consent in a case where—

(a) the identity or whereabouts of a performer cannot be ascertained by reasonableinquiry, or

(b) a performer unreasonably withholds his consent.

(2) Consent given by the Tribunal has effect as consent of the performer for the purposesof—

(a) the provisions of this Part relating to performers’ rights, and(b) section 198(3)(a) (criminal liability: sufficient consent in relation to

qualifying performances),and may be given subject to any conditions specified in the Tribunal’s order.

(3) The Tribunal shall not give consent under subsection (1)(a) except after the serviceor publication of such notices as may be required by rules made under section 150(general procedural rules) or as the Tribunal may in any particular case direct.

(4) The Tribunal shall not give consent under subsection (1)(b) unless satisfied that theperformer’s reasons for withholding consent do not include the protection of anylegitimate interest of his; but it shall be for the performer to show what his reasonsare for withholding consent, and in default of evidence as to his reasons the Tribunalmay draw such inferences as it thinks fit.

(5) In any case the Tribunal shall take into account the following factors—(a) whether the original recording was made with the performer’s consent and

is lawfully in the possession or control of the person proposing to make thefurther recording;

(b) whether the making of the further recording is consistent with the obligationsof the parties to the arrangements under which, or is otherwise consistent withthe purposes for which, the original recording was made.

(6) Where the Tribunal gives consent under this section it shall, in default of agreementbetween the applicant and the performer, make such order as it thinks fit as to thepayment to be made to the performer in consideration of consent being given.

Duration and transmission of rights; consent

191 Duration of rights.

The rights conferred by this Part continue to subsist in relation to a performance untilthe end of the period of 50 years from the end of the calendar year in which theperformance takes place.

[F68Performers’ property rights]

Textual AmendmentsF68 Crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)





141




[F69191APerformers’ property rights.

(1) The following rights conferred by this Part on a performer—

reproduction right (section 182A),

distribution right (section 182B),

rental right and lending right (section 182C),

are property rights (“a performer’s property rights").

(2) References in this Part to the consent of the performer shall be construed in relationto a performer’s property rights as references to the consent of the rights owner.

(3) Where different persons are (whether in consequence of a partial assignment orotherwise) entitled to different aspects of a performer’s property rights in relationto a performance, the rights owner for any purpose of this Part is the person who isentitled to the aspect of those rights relevant for that purpose.

(4) Where a performer’s property rights (or any aspect of them) is owned by more thanone person jointly, references in this Part to the rights owner are to all the owners,so that, in particular, any requirement of the licence of the rights owner requires thelicence of all of them.]

Textual AmendmentsF69 Ss. 191A-191M inserted (1.12.1996) by S.I. 1996/2967, reg. 21(1) (with Pt. III)


[F70191BX11 Assignment and licences.

(1) A performer’s property rights are transmissible by assignment, by testamentarydisposition or by operation of law, as personal or moveable property.

(2) An assignment or other transmission of a performer’s property rights may be partial,that is, limited so as to apply—

(a) to one or more, but not all, of the things requiring the consent of the rightsowner;

(b) to part, but not the whole, of the period for which the rights are to subsist.

(3) An assignment of a performer’s property rights is not effective unless it is in writingsigned by or on behalf of the assignor.

(4) A licence granted by the owner of a performer’s property rights is binding on everysuccessor in title to his interest in the rights, except a purchaser in good faith forvaluable consideration and without notice (actual or constructive) of the licenceor a person deriving title from such a purchaser; and references in this Part to









doing anything with, or without, the licence of the rights owner shall be construedaccordingly.]





[F71191CX12 Prospective ownership of a performer’s property rights.

(1) This section applies where by an agreement made in relation to a future recording ofa performance, and signed by or on behalf of the performer, the performer purportsto assign his performer’s property rights (wholly or partially) to another person.

(2) If on the rights coming into existence the assignee or another person claiming underhim would be entitled as against all other persons to require the rights to be vested inhim, they shall vest in the assignee or his successor in title by virtue of this subsection.

(3) A licence granted by a prospective owner of a performer’s property rights is bindingon every successor in title to his interest (or prospective interest) in the rights, excepta purchaser in good faith for valuable consideration and without notice (actual orconstructive) of the licence or a person deriving title from such a purchaser.

References in this Part to doing anything with, or without, the licence of the rightsowner shall be construed accordingly.

(4) In subsection (3) “prospective owner" in relation to a performer’s property rightsmeans a person who is prospectively entitled to those rights by virtue of such anagreement as is mentioned in subsection (1).]













143




[F72191DX13 Exclusive licences.

(1) In this Part an “exclusive licence" means a licence in writing signed by or on behalf ofthe owner of a performer’s property rights authorising the licensee to the exclusion ofall other persons, including the person granting the licence, to do anything requiringthe consent of the rights owner.

(2) The licensee under an exclusive licence has the same rights against a successor intitle who is bound by the licence as he has against the person granting the licence.]





[F73191EX14 Performer’s property right to pass under will with unpublished originalrecording.

Where under a bequest (whether general or specific) a person is entitled beneficiallyor otherwise to any material thing containing an original recording of a performancewhich was not published before the death of the testator, the bequest shall, unlessa contrary intention is indicated in the testator’s will or a codicil to it, be construedas including any performer’s rights in relation to the recording to which the testatorwas entitled immediately before his death.]

















[F74191F X15 Presumption of transfer of rental right in case of film productionagreement.

(1) Where an agreement concerning film production is concluded between a performerand a film producer, the performer shall be presumed, unless the agreement providesto the contrary, to have transferred to the film producer any rental right in relation tothe film arising from the inclusion of a recording of his performance in the film.

(2) Where this section applies, the absence of signature by or on behalf of the performerdoes not exclude the operation of section 191C (effect of purported assignment offuture rights).

(3) The reference in subsection (1) to an agreement concluded between a performer and afilm producer includes any agreement having effect between those persons, whethermade by them directly or through intermediaries.

(4) Section 191G (right to equitable remuneration on transfer of rental right) applieswhere there is a presumed transfer by virtue of this section as in the case of an actualtransfer.]




Modifications etc. (not altering text)C71 S. 191F applied (1.12.1996) by S.I. 1996/2967, reg. 32(1) (with Pt. III)


[F75191GX16 Right to equitable remuneration where rental right transferred.

(1) Where a performer has transferred his rental right concerning a sound recording or afilm to the producer of the sound recording or film, he retains the right to equitableremuneration for the rental.

The reference above to the transfer of rental right by one person to another includesany arrangement having that effect, whether made by them directly or throughintermediaries.

(2) The right to equitable remuneration under this section may not be assigned by theperformer except to a collecting society for the purpose of enabling it to enforce theright on his behalf.





http://www.legislation.gov.uk/id/ukpga/1988/48/section/191F





145




(3) Equitable remuneration under this section is payable by the person for the time beingentitled to the rental right, that is, the person to whom the right was transferred orany successor in title of his.

(4) The amount payable by way of equitable remuneration is as agreed by or on behalfof the persons by and to whom it is payable, subject to section 191H (reference ofamount to Copyright Tribunal).

(5) An agreement is of no effect in so far as it purports to exclude or restrict the right toequitable remuneration under this section.

(6) In this section a “collecting society" means a society or other organisation which hasas its main object, or one of its main objects, the exercise of the right to equitableremuneration on behalf of more than one performer.]




Modifications etc. (not altering text)C72 S. 191G applied (with modifications) (1.12.1996) by S.I. 1996/2967, reg. 32(2) (with Pt. III)C73 S. 191G restricted (1.12.1996) by S.I. 1996/2967, reg. 33 (with Pt. III)


[F76191HX17 Equitable remuneration: reference of amount to Copyright Tribunal.

(1) In default of agreement as to the amount payable by way of equitable remunerationunder section 191G, the person by or to whom it is payable may apply to theCopyright Tribunal to determine the amount payable.

(2) A person to or by whom equitable remuneration is payable may also apply to theCopyright Tribunal—

(a) to vary any agreement as to the amount payable, or(b) to vary any previous determination of the Tribunal as to that matter;

but except with the special leave of the Tribunal no such application may be madewithin twelve months from the date of a previous determination.






http://www.legislation.gov.uk/id/ukpga/1988/48/section/191G




http://www.legislation.gov.uk/id/ukpga/1988/48/section/191G








(3) On an application under this section the Tribunal shall consider the matter and makesuch order as to the method of calculating and paying equitable remuneration asit may determine to be reasonable in the circumstances, taking into account theimportance of the contribution of the performer to the film or sound recording.

(4) Remuneration shall not be considered inequitable merely because it was paid by wayof a single payment or at the time of the transfer of the rental right.

(5) An agreement is of no effect in so far as it purports to prevent a person questioning theamount of equitable remuneration or to restrict the powers of the Copyright Tribunalunder this section.]





[F77191I X18 Infringement actionable by rights owner.

(1) An infringement of a performer’s property rights is actionable by the rights owner.

(2) In an action for infringement of a performer’s property rights all such relief by way ofdamages, injunctions, accounts or otherwise is available to the plaintiff as is availablein respect of the infringement of any other property right.

(3) This section has effect subject to the following provisions of this Part.]













147




[F78191J X19 Provisions as to damages in infringement action.

(1) Where in an action for infringement of a performer’s property rights it is shown that atthe time of the infringement the defendant did not know, and had no reason to believe,that the rights subsisted in the recording to which the action relates, the plaintiff isnot entitled to damages against him, but without prejudice to any other remedy.

(2) The court may in an action for infringement of a performer’s property rights havingregard to all the circumstances, and in particular to—


award such additional damages as the justice of the case may require.]





191JA X20Injunctions against service providers

(1) The High Court (in Scotland, the Court of Session) shall have power to grantan injunction against a service provider, where that service provider has actualknowledge of another person using their service to infringe a performer’s propertyright.

(2) In determining whether a service provider has actual knowledge for the purposeof this section, a court shall take into account all matters which appear to it in theparticular circumstances to be relevant and, amongst other things, shall have regardto—

(a) whether a service provider has received a notice through a means of contactmade available in accordance with regulation 6(1)(c) of the ElectronicCommerce (EC Directive) Regulations 2002 (SI 2002/2013); and

(b) the extent to which any notice includes—(i) the full name and address of the sender of the notice;

(ii) details of the infringement in question.









(3) In this section “service provider” has the meaning given to it by regulation 2 of theElectronic Commerce (EC Directive) Regulations 2002.

(4) Section 177 applies in respect of this section as it applies in respect of Part 1.




[F79191KX21 Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of a performer’s property rights in respect ofwhich a licence is available as of right under paragraph 17 of Schedule 2A (powersexercisable in consequence of competition report) the defendant undertakes to takea licence on such terms as may be agreed or, in default of agreement, settled by theCopyright Tribunal under that paragraph—



(2) An undertaking may be given at any time before final order in the proceedings,without any admission of liability.

(3) Nothing in this section affects the remedies available in respect of an infringementcommitted before licences of right were available.]









149




[F80191LX22 Rights and remedies for exclusive licensee.

(1) An exclusive licensee has, except against the owner of a performer’s property rights,the same rights and remedies in respect of matters occurring after the grant of thelicence as if the licence had been an assignment.

(2) His rights and remedies are concurrent with those of the rights owner; and referencesin the relevant provisions of this Part to the rights owner shall be construedaccordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendantmay avail himself of any defence which would have been available to him if theaction had been brought by the rights owner.]





[F81191MX23 Exercise of concurrent rights.

(1) Where an action for infringement of a performer’s property rights brought by therights owner or an exclusive licensee relates (wholly or partly) to an infringementin respect of which they have concurrent rights of action, the rights owner or, as thecase may be, the exclusive licensee may not, without the leave of the court, proceedwith the action unless the other is either joined as plaintiff or added as a defendant.

(2) A rights owner or exclusive licensee who is added as a defendant in pursuance ofsubsection (1) is not liable for any costs in the action unless he takes part in theproceedings.

(3) The above provisions do not affect the granting of interlocutory relief on anapplication by the rights owner or exclusive licensee alone.

(4) Where an action for infringement of a performer’s property rights is brought whichrelates (wholly or partly) to an infringement in respect of which the rights owner andan exclusive licensee have or had concurrent rights of action—

(a) the court shall in assessing damages take into account—(i) the terms of the licence, and











(c) the court shall if an account of profits is directed apportion the profitsbetween them as the court considers just, subject to any agreement betweenthem; and these provisions apply whether or not the rights owner and theexclusive licensee are both parties to the action.

(5) The owner of a performer’s property rights shall notify any exclusive licensee havingconcurrent rights before applying for an order under section 195 (order for deliveryup) or exercising the right conferred by section 196 (right of seizure); and the courtmay on the application of the licensee make such order under section 195 or, as thecase may be, prohibiting or permitting the exercise by the rights owner of the rightconferred by section 196, as it thinks fit having regard to the terms of the licence.]




192 Transmission of rights.

(1) The rights conferred by this Part are not assignable or transmissible, except to theextent that performers’ rights are transmissible in accordance with the followingprovisions.

(2) On the death of a person entitled to performer’s rights—(a) the rights pass to such person as he may by testamentary disposition

specifically direct, and(b) if or to the extent that there is no such direction, the rights are exercisable by

his personal representatives;and references in this Part to the performer, in the context of the person havingperformers’ rights, shall be construed as references to the person for the time beingentitled to exercise those rights.

(3) Where by virtue of subsection (2)(a) a right becomes exercisable by more than oneperson, it is exercisable by each of them independently of the other or others.

(4) The above provisions do not affect section 185(2)(b) or (3)(b), so far as thoseprovisions confer rights under this Part on a person to whom the benefit of a contractor licence is assigned.

(5) Any damages recovered by personal representatives by virtue of this section in respectof an infringement after a person’s death shall devolve as part of his estate as if theright of action had subsisted and been vested in him immediately before his death.






151



[F82Non-property rights]

Textual AmendmentsF82 Ss. 192A, 192B and crossheading substituted for s. 192 (1.12.1996) by S.I. 1996/2967, reg. 21(2)

(with Pt. III)


[F83192AX24Performers’ non-property rights.

(1) the rights conferred on a performer by -

section 182 (consent required for recording, &c. of live performance),

section 183 (infringement of performer’s rights by use of recording made withoutconsent), and

section 184 (infringement of performer’s rights importing, possessing or dealingwith illicit recording),

are not assignable or transmissible, except to the following extent.

They are referred to in this Part as “a performer’s non-property rights".

(2) On the death of a person entitled to any such right—(a) the right passes to such person as he may by testamentary disposition

specifically direct, and(b) if or to the extent that there is no such direction, the right is exercisable by

his personal representatives.

(3) References in this Part to the performer, in the context of the person having any suchright, shall be construed as references to the person for the time being entitled toexercise those rights.

(4) Where by virtue of subsection (2)(a) a right becomes exercisable by more than oneperson, it is exercisable by each of them independently of the other or others.

(5) Any damages recovered by personal representatives by virtue of this section inrespect of an infringement after a person’s death shall devolve as part of his estateas if the right of action had subsisted and been vested in him immediately beforehis death.]













(with Pt. III)


[F84192BX25 Transmissibility of rights of person having recording rights.

(1) The rights conferred by this Part on a person having recording rights are notassignable or transmissible.

(2) This does not affect section 185(2)(b) or (3)(b), so far as those provisions conferrights under this Part on a person to whom the benefit of a contract or licence isassigned.]




(with Pt. III)

193 Consent.

(1) Consent for the purposes of this Part may be given in relation to a specific performance,a specified description of performances or performances generally, and may relate topast or future performances.

(2) A person having recording rights in a performance is bound by any consent given bya person through whom he derives his rights under the exclusive recording contract orlicence in question, in the same way as if the consent had been given by him.

(3) Where a right conferred by this Part passes to another person, any consent binding onthe person previously entitled binds the person to whom the right passes in the sameway as if the consent had been given by him.

Remedies for infringement

194 Infringement actionable as breach of statutory duty.

An infringement of any of the rights conferred by this Part is actionable by the personentitled to the right as a breach of statutory duty.












153



[F85X26Delivery up or seizure of illicit recordings]



Textual AmendmentsF85 Heading before s. 195 inserted (1.12.1996) by S.I. 1996/2967, reg. 21(5)(c) (with Pt. III)


(1) Where a person has in his possession, custody or control in the course of a businessan illicit recording of a performance, a person having performer’s rights or recordingrights in relation to the performance under this Part may apply to the court for an orderthat the recording be delivered up to him or to such other person as the court maydirect.

(2) An application shall not be made after the end of the period specified in section 203;and no order shall be made unless the court also makes, or it appears to the court thatthere are grounds for making, an order under section 204 (order as to disposal of illicitrecording).

(3) A person to whom a recording is delivered up in pursuance of an order under thissection shall, if an order under section 204 is not made, retain it pending the makingof an order, or the decision not to make an order, under that section.


196 X27 Right to seize illicit recordings.

(1) An illicit recording of a performance which is found exposed or otherwise immediatelyavailable for sale or hire, and in respect of which a person would be entitled to apply foran order under section 195, may be seized and detained by him or a person authorisedby him.

The right to seize and detain is exercisable subject to the following conditions and issubject to any decision of the court under section 204 (order as to disposal of illicitrecording).

(2) Before anything is seized under this section notice of the time and place of theproposed seizure must be given to a local police station.

(3) A person may for the purpose of exercising the right conferred by this section enterpremises to which the public have access but may not seize anything in the possession,custody or control of a person at a permanent or regular place of business of his andmay not use any force.

(4) At the time when anything is seized under this section there shall be left at theplace where it was seized a notice in the prescribed form containing the prescribedparticulars as to the person by whom or on whose authority the seizure is made andthe grounds on which it is made.


http://www.legislation.gov.uk/id/uksi/1996/2967/regulation/21/5/c






(5) In this section—“premises” includes land, buildings, fixed or moveable structures, vehicles,

vessels, aircraft and hovercraft; and“prescribed” means prescribed by order of the Secretary of State.

(6) An order of the Secretary of State under this section shall be made by statutoryinstrument which shall be subject to annulment in pursuance of a resolution of eitherHouse of Parliament.



197 Meaning of “illicit recording".

(1) In this Part “illicit recording”, in relation to a performance, shall be construed inaccordance with this section.

(2) For the purposes of a performer’s rights, a recording of the whole or any substantialpart of a performance of his is an illicit recording if it is made, otherwise than forprivate purposes, without his consent.

(3) For the purposes of the rights of a person having recording rights, a recording ofthe whole or any substantial part of a performance subject to the exclusive recordingcontract is an illicit recording if it is made, otherwise than for private purposes, withouthis consent or that of the performer.

(4) For the purposes of sections 198 and 199 (offences and orders for delivery up incriminal proceedings), a recording is an illicit recording if it is an illicit recording forthe purposes mentioned in subsection (2) or subsection (3).

(5) In this Part “illicit recording” includes a recording falling to be treated as an illicitrecording by virtue of any of the following provisions of Schedule 2—

paragraph 4(3) (recordings made for purposes of instruction or examination),paragraph 6(2) (recordings made by educational establishments for educationalpurposes),paragraph 12(2) (recordings of performance in electronic form retained ontransfer of principal recording), orparagraph 16(3) (recordings made for purposes of broadcast or cableprogramme),

but otherwise does not include a recording made in accordance with any of theprovisions of that Schedule.

(6) It is immaterial for the purposes of this section where the recording was made.


155



X28 Offences



198 Criminal liability for making, dealing with or using illicit recordings.

(1) A person commits an offence who without sufficient consent—(a) makes for sale or hire, or(b) imports into the United Kingdom otherwise than for his private and domestic

use, or(c) possesses in the course of a business with a view to committing any act

infringing the rights conferred by this Part, or(d) in the course of a business—


(iii) distributes,a recording which is, and which he knows or has reason to believe is, an illicitrecording.

(2) A person commits an offence who causes a recording of a performance made withoutsufficient consent to be—

(a) shown or played in public, or(b) broadcast or included in a cable programme service,

thereby infringing any of the rights conferred by this Part, if he knows or has reasonto believe that those rights are thereby infringed.

(3) In subsections (1) and (2) “sufficient consent” means—(a) in the case of a qualifying performance, the consent of the performer, and(b) in the case of a non-qualifying performance subject to an exclusive recording

contract—(i) for the purposes of subsection (1)(a) (making of recording), the

consent of the performer or the person having recording rights, and(ii) for the purposes of subsection (1)(b), (c) and (d) and subsection (2)

(dealing with or using recording), the consent of the person havingrecording rights.

The references in this subsection to the person having recording rights are tothe person having those rights at the time the consent is given or, if there ismore than one such person, to all of them.

(4) No offence is committed under subsection (1) or (2) by the commission of an act whichby virtue of any provision of Schedule 2 may be done without infringing the rightsconferred by this Part.

(5) A person guilty of an offence under subsection (1)(a), (b) or (d)(iii) is liable—





(a) on summary conviction to imprisonment for a term not exceeding six monthsor a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment to a fine or imprisonment for a term not exceedingtwo years, or both.

(6) A person guilty of any other offence under this section is liable on summary convictionto a fine not exceeding level 5 on the standard scale or imprisonment for a term notexceeding six months, or both.

199 Order for delivery up in criminal proceedings.

(1) The court before which proceedings are brought against a person for an offence undersection 198 may, if satisfied that at the time of his arrest or charge he had in hispossession, custody or control in the course of a business an illicit recording of aperformance, order that it be delivered up to a person having performers’ rights orrecording rights in relation to the performance or to such other person as the courtmay direct.

(2) For this purpose a person shall be treated as charged with an offence—(a) in England, Wales and Northern Ireland, when he is orally charged or is served

with a summons or indictment;(b) in Scotland, when he is cautioned, charged or served with a complaint or

indictment.

(3) An order may be made by the court of its own motion or on the application of theprosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), and may be madewhether or not the person is convicted of the offence, but shall not be made—

(a) after the end of the period specified in section 203 (period after which remedyof delivery up not available), or

(b) if it appears to the court unlikely that any order will be made under section 204(order as to disposal of illicit recording).


and in Scotland, where an order has been made under this section, the person fromwhose possession, custody or control the illicit recording has been been removed may,without predudice to any other form of appeal under any rule of law, appeal againstthat order in the same manner as against sentence.

(5) A person to whom an illicit recording is delivered up in pursuance of an order underthis section shall retain it pending the making of an order, or the decision not to makean order, under section 204.

(6) Nothing in in this section affects the powers of the court under section 43 of theM33Powers of Criminal Courts Act 1973, section 223 or 436 of the M34CriminalProcedure (Scotland) Act 1975 or Article 7 of the M35Criminal Justice (NorthernIreland) Order 1980 (general provisions as to forfeiture in criminal proceedings).





157



M35 S.I. 1980/704 (N.I.6).

200 Search warrants.


(a) that an offence under section 198(1)(a), (b) or (d)(iii) (offences of making,importing or distributing illicit recordings) has been or is about to becommitted in any premises, and

(b) that evidence that such an offence has been or is about to be committed is inthose premises,


(2) The power conferred by subsection (1) does not, in England and Wales, extend toauthorising a search for material of the kinds mentioned in section 9(2) of the M36Policeand Criminal Evidence Act 1984 (certain classes of personal or confidential material).

(3) A warrant under subsection (1)—(a) may authorise persons to accompany any constable executing the warrant, and(b) remains in force for 28 days from the date of its issue.

(4) In this section “premises” includes land, buildings, fixed or moveable structures,vehicles, vessels, aircraft and hovercraft.


201 X29 False representation of authority to give consent.

(1) It is an offence for a person to represent falsely that he is authorised by any personto give consent for the purposes of this Part in relation to a performance, unless hebelieves on reasonable grounds that he is so authorised.

(2) A person guilty of an offence under this section is liable on summary conviction toimprisonment for a term not exceeding six months or a fine not exceeding level 5 onthe standard scale or both.









202 X30 Offence by body corporate: liability of officers.

(1) Where an offence under this Part committed by a body corporate is proved to havebeen committed with the consent or connivance of a director, manager, secretary orother similar officer of the body, or a person purporting to act in any such capacity,he as well as the body corporate is guilty of the offence and liable to be proceededagainst and punished accordingly.




Supplementary provisions with respect to delivery up and seizure

203 X31 Period after which remedy of delivery up not available.

(1) An application for an order under section 195 (order for delivery up in civilproceedings) may not be made after the end of the period of six years from the date onwhich the illicit recording in question was made, subject to the following provisions.

(2) If during the whole or any part of that period a person entitled to apply for an order—(a) is under a disability, or(b) is prevented by fraud or concealment from discovering the facts entitling him

to apply,an application may be made by him at any time before the end of the period of sixyears from the date on which he ceased to be under a disability or, as the case may be,could with reasonable diligence have discovered those facts.


and Limitations (Scotland) Act 1973;(c) in Northern Ireland, has the same meaning as in the M39Statute of Limitation


(4) An order under section 199 (order for delivery up in criminal proceedings) shall not,in any case, be made after the end of the period of six years from the date on whichthe illicit recording in question was made.




159




204 Order as to disposal of illicit recording.

(1) An application may be made to the court for an order that an illicit recording of aperformance delivered up in pursuance of an order under section 195 or 199, or seizedand detained in pursuance of the right conferred by section 196, shall be—

(a) forfeited to such person having performer’s rights or recording rights inrelation to the performance as the court may direct, or

(b) destroyed or otherwise dealt with as the court may think fit,or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whetherother remedies available in an action for infringement of the rights conferred by thisPart would be adequate to compensate the person or persons entitled to the rights andto protect their interests.

(3) Provision shall be made by rules of court as to the service of notice on persons havingan interest in the recording, and any such person is entitled—


(b) to appeal against any order made, whether or not he appeared;and an order shall not take effect until the end of the period within which notice of anappeal may be given or, if before the end of that period notice of appeal is duly given,until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in a recording, the court shall makesuch order as it thinks just and may (in particular) direct that the recording be sold, orotherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person inwhose possession, custody or control the recording was before being delivered up orseized is entitled to its return.

(6) References in this section to a person having an interest in a recording include anyperson in whose favour an order could be made in respect of the recording under thissection or under section 114 or 231 of this Act or section 58C of the M40Trade MarksAct 1938 (which make similar provision in relation to infringement of copyright,design right and trade marks).











[F86204AForfeiture of illicit recordings: England and Wales or Northern Ireland

(1) In England and Wales or Northern Ireland where illicit recordings of a performancehave come into the possession of any person in connection with the investigation orprosecution of a relevant offence, that person may apply under this section for anorder for the forfeiture of the illicit recordings.

(2) For the purposes of this section “relevant offence” means—(a) an offence under section 198(1) (criminal liability for making or dealing with

illicit recordings),(b) an offence under the Trade Descriptions Act 1968 (c. 29), or(c) an offence involving dishonesty or deception.


relating to some or all of the illicit recordings, to that court, or(b) where no application for the forfeiture of the illicit recordings has been made

under paragraph (a), by way of complaint to a magistrates’ court.

(4) On an application under this section, the court shall make an order for the forfeiture ofany illicit recordings only if it is satisfied that a relevant offence has been committedin relation to the illicit recordings.

(5) A court may infer for the purposes of this section that such an offence has beencommitted in relation to any illicit recordings if it is satisfied that such an offence hasbeen committed in relation to illicit recordings which are representative of the illicitrecordings in question (whether by reason of being part of the same consignment orbatch or otherwise).




(8) Subject to subsection (9), where any illicit recordings are forfeited under this sectionthey shall be destroyed in accordance with such directions as the court may give.

(9) On making an order under this section the court may direct that the illicit recordingsto which the order relates shall (instead of being destroyed) be forfeited to the personhaving the performers’ rights or recording rights in question or dealt with in suchother way as the court considers appropriate.]


161



Textual AmendmentsF86 S. 204A inserted (20.11.2002) by 2002 c. 25, s. 4; S.I. 2002/2749, art. 2


204B F87 Forfeiture: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture of anyillicit recordings.

(2) An order under this section may be made—(a) on an application by the procurator-fiscal made in the manner specified in

section 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or(b) where a person is convicted of a relevant offence, in addition to any other

penalty which the court may impose.

(3) On an application under subsection (2)(a), the court shall make an order for theforfeiture of any illicit recordings only if it is satisfied that a relevant offence hasbeen committed in relation to the illicit recordings.

(4) The court may infer for the purposes of this section that such an offence has beencommitted in relation to any illicit recordings if it is satisfied that such an offence hasbeen committed in relation to illicit recordings which are representative of the illicitrecordings in question (whether by reason of being part of the same consignment orbatch or otherwise).

(5) The procurator-fiscal making the application under subsection (2)(a) shall serve onany person appearing to him to be the owner of, or otherwise to have an interest in, theillicit recordings to which the application relates a copy of the application, togetherwith a notice giving him the opportunity to appear at the hearing of the applicationto show cause why the illicit recordings should not be forfeited.

(6) Service under subsection (5) shall be carried out, and such service may be proved,in the manner specified for citation of an accused in summary proceedings under theCriminal Procedure (Scotland) Act 1995.

(7) Any person upon whom notice is served under subsection (5) and any other personclaiming to be the owner of, or otherwise to have an interest in, illicit recordingsto which an application under this section relates shall be entitled to appear at thehearing of the application to show cause why the illicit recordings should not beforfeited.




(9) Where an order for the forfeiture of any illicit recordings is made following anapplication under subsection (2)(a), any person who appeared, or was entitled to










appear, to show cause why the illicit recordings should not be forfeited may, within21 days of the making of the order, appeal to the High Court by Bill of Suspension.

(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply toan appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.





brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or(b) if an appeal is made within that period, until the appeal is determined or

abandoned.

(13) Subject to subsection (14), illicit recordings forfeited under this section shall bedestroyed in accordance with such directions as the court may give.

(14) On making an order under this section the court may direct that the illicit recordingsto which the order relates shall (instead of being destroyed) be forfeited to the personhaving the performers’ rights or recording rights in question or dealt with in suchother way as the court considers appropriate.

(15) For the purposes of this section—“relevant offence” means an offence under section 198(1) (criminal

liability for making or dealing with illicit recordings), or under the TradeDescriptions Act 1968 (c. 29) or any offence involving dishonesty ordeception;




Textual AmendmentsF87 S. 204B inserted (20.11.2002) by 2002 c. 25, s. 4; S.I. 2002/2749, art. 2



section 195 (order for delivery up of illicit recording), orsection 204 (order as to disposal of illicit recording),

where the value of the illicit recordings in question does not exceed the county courtlimit for actions in tort.

(2) In Scotland proceedings for an order under either of those provisions may be broughtin the sheriff court.







163





[X32F88Licensing of performers’ property rights]

Editorial InformationX32 The insertion of the new headings "Chapter 1 Introductory", "Chapter 2 Economic Rights",

"Chapter 3 Moral Rights" and "Chapter 4 Qualification for Protection, Extent and Interpretation" inPt. II on 1.2.2006 gives rise to a change in the structure of this legislation on SLD which breaks thecontinuity of historical versions of the existing provisions which are now brought under those newheadings.

Textual AmendmentsF88 S. 205A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 22(1) (with Pt. III)

[F89205AX33 Licensing of performers’ property rights.

The provisions of Schedule 2A have effect with respect to the licensing ofperformers’ property rights.]





[X34F90Jurisdiction of Copyright Tribunal]















Textual AmendmentsF90 S. 205B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 24 (with Pt. III)

[F91205BX35 Jurisdiction of Copyright Tribunal.

(1) The Copyright Tribunal has jurisdiction under this Part to hear and determineproceedings under—

(a) section 182D (amount of equitable remuneration for exploitation ofcommercial sound recording);

(b) section 190 (application to give consent on behalf of owner of reproductionright);

(c) section 191H (amount of equitable remuneration on transfer of rental right);[

F92(cc)paragraph 19 of Schedule 2 (determination of royalty or other remunerationto be paid with respect to re-transmission of broadcast includingperformance or recording);]

(d) paragraph 3, 4 or 5 of Schedule 2A (reference of licensing scheme);(e) paragraph 6 or 7 of that Schedule (application with respect to licence under

licensing scheme);(f) paragraph 10, 11 or 12 of that Schedule (reference or application with respect

to licensing by licensing body);(g) paragraph 15 of that Schedule (application to settle royalty for certain

lending);(h) paragraph 17 of that Schedule (application to settle terms of licence available

as of right).

(2) The provisions of Chapter VIII of Part I (general provisions relating to the CopyrightTribunal) apply in relation to the Tribunal when exercising any jurisdiction underthis Part.

(3) Provision shall be made by rules under section 150 prohibiting the Tribunal fromentertaining a reference under paragraph 3, 4 or 5 of Schedule 2A (reference oflicensing scheme) by a representative organisation unless the Tribunal is satisfiedthat the organisation is reasonably representative of the class of persons which itclaims to represent.]



Textual AmendmentsF91 S. 205B inserted (1.12.1996) by S.I. 1996/2967, reg. 24 (with Pt. III)F92 S. 205B(cc) inserted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 4 (with s. 43(6)); S.I.

1996/2120, art. 4(1), Sch. 1









http://www.legislation.gov.uk/id/ukpga/1988/48/section/205B/cc










165



X36 Qualification for protection and extent



206 X37 Qualifying countries, individuals and persons.

(1) In this Part—“qualifying country” means—

(a) the United Kingdom,(b) another member State of the European Economic Community, or(c) to the extent that an Order under section 208 so provides, a country designated

under that section as enjoying reciprocal protection;“qualifying individual” means a citizen or subject of, or an individual

resident in, a qualifying country; and“qualifying person” means a qualifying individual or a body corporate or

other body having legal personality which—(a) is formed under the law of a part of the United Kingdom or another qualifying

country, and(b) has in any qualifying country a place of business at which substantial business

activity is carried on.

(2) The reference in the definition of “qualifying individual" to a person’s being a citizenor subject of a qualifying country shall be construed—

(a) in relation to the United Kingdom, as a reference to his being a British citizen,and

(b) in relation to a colony of the United Kingdom, as a reference to his being aBritish Dependent Territories’ citizen by connection with that colony.

(3) In determining for the purpose of the definition of “qualifying person" whethersubstantial business activity is carried on at a place of business in any country, noaccount shall be taken of dealings in goods which are at all material times outside thatcountry.



207 X38 Countries to which this Part extends.

This Part extends to England and Wales, Scotland and Northern Ireland.







208 X39 Countries enjoying reciprocal protection.

(1) Her Majesty may by Order in Council designate as enjoying reciprocal protectionunder this Part—

(a) a Convention country, or(b) a country as to which Her Majesty is satisfied that provision has been or will

be made under its law giving adequate protection for British performances.

(2) A “Convention country” means a country which is a party to a Convention relating toperformers’ rights to which the United Kingdom is also a party.

(3) A “British performance” means a performance—(a) given by an individual who is a British citizen or resident in the United

Kingdom, or(b) taking place in the United Kingdom.

(4) If the law of that country provides adequate protection only for certain descriptions ofperformance, an Order under subsection (1)(b) designating that country shall containprovision limiting to a corresponding extent the protection afforded by this Part inrelation to performances connected with that country.

(5) The power conferred by subsection (1)(b) is exercisable in relation to any of theChannel Islands, the Isle of Man or any colony of the United Kingdom, as in relationto a foreign country.




209 X40 Territorial waters and the continental shelf.




167







210 British ships, aircraft and hovercraft.

(1) This Part applies to things done on a British ship, aircraft or hovercraft as it appliesto things done in the United Kingdom.

(2) In this section—“British ship” means a ship which is a British ship for the purposes of

the Merchant Shipping Acts (see section 2 of the M42Merchant Shipping Act1988) otherwise than by virtue of registration in a country outside the UnitedKingdom; and

“British aircraft” and “British hovercraft” mean an aircraft or hovercraftregistered in the United Kingdom.


X41 Interpretation



211 Expressions having same meaning as in copyright provisions.

(1) The following expressions have the same meaning in this Part as in Part I (copyright)—

broadcast,business,cable programme,cable programme service,country,







defendant (in Scotland),delivery up (in Scotland),film,literary work,published, andsound recording.

(2) The provisions of section 6(3) to (5), section 7(5) and 19(4) (supplementary provisionsrelating to broadcasting and cable programme services) apply for the purposes of thisPart, and in relation to an infringement of the rights conferred by this Part, as theyapply for the purposes of Part I and in relation to an infringement of copyright.

212 Index of defined expressions.


broadcast (and related expressions) section 211 (and section 6)business section 211(1) (and section 178)cable programme, cable programmeservice (and related expressions)

section 211 (and section 7)

country section 211(1) (and section 178)defendant (in Scotland) section 211(1) (and section 177)delivery up (in Scotland) section 211(1) (and section 177)exclusive recording contract section 185(1)film section 211(1) (and section 5)illicit recording section 197literary work section 211(1) (and section 3(1))performance section 180(2)published section 211(1) (and section 175)qualifying country section 206(1)qualifying individual section 206(1) and (2)qualifying performance section 181qualifying person section 206(1) and (3)recording (of a performance) section 180(2)recording rights (person having) section 185(2) and (3)sound recording section 211(1) (and section 5).

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PART III

DESIGN RIGHT

Modifications etc. (not altering text)C74 Pt. III (ss. 213–264) modified by S.I. 1989/1100, art. 3

CHAPTER I

DESIGN RIGHT IN ORIGINAL DESIGNS

Introductory

213 Design right.

(1) Design right is a property right which subsists in accordance with this Part in anoriginal design.

(2) In this Part “design” means the design of any aspect of the shape or configuration(whether internal or external) of the whole or part of an article.

(3) Design right does not subsist in—(a) a method or principle of construction,(b) features of shape or configuration of an article which—

(i) enable the article to be connected to, or placed in, around or against,another article so that either article may perform its function, or

(ii) are dependent upon the appearance of another article of which thearticle is intended by the designer to form an integral part, or

(c) surface decoration.

(4) A design is not “original” for the purposes of this Part if it is commonplace in thedesign field in question at the time of its creation.

(5) Design right subsists in a design only if the design qualifies for design right protectionby reference to—

(a) the designer or the person by whom the design was commissioned or thedesigner employed (see sections 218 and 219), or

(b) the person by whom and country in which articles made to the design werefirst marketed (see section 220),

or in accordance with any Order under section 221 (power to make further provisionwith respect to qualification).

(6) Design right does not subsist unless and until the design has been recorded in a designdocument or an article has been made to the design.

(7) Design right does not subsist in a design which was so recorded, or to which an articlewas made, before the commencement of this Part.

http://www.legislation.gov.uk/id/ukpga/1988/48/part/III



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214 The designer.

(1) In this Part the “designer”, in relation to a design, means the person who creates it.

(2) In the case of a computer-generated design the person by whom the arrangementsnecessary for the creation of the design are undertaken shall be taken to be the designer.

215 Ownership of design right.

(1) The designer is the first owner of any design right in a design which is not created inpursuance of a commission or in the course of employment.

(2) Where a design is created in pursuance of a commission, the person commissioningthe design is the first owner of any design right in it.

(3) Where, in a case not falling within subsection (2) a design is created by an employeein the course of his employment, his employer is the first owner of any design rightin the design.

(4) If a design qualifies for design right protection by virtue of section 220 (qualificationby reference to first marketing of articles made to the design), the above rules do notapply and the person by whom the articles in question are marketed is the first ownerof the design right.

216 Duration of design right.

(1) Design right expires—(a) fifteen years from the end of the calendar year in which the design was first

recorded in a design document or an article was first made to the design,whichever first occurred, or

(b) if articles made to the design are made available for sale or hire within fiveyears from the end of that calendar year, ten years from the end of the calendaryear in which that first occurred.

(2) The reference in subsection (1) to articles being made available for sale or hire is totheir being made so available anywhere in the world by or with the licence of thedesign right owner.

Qualification for design right protection

217 Qualifying individuals and qualifying persons.

(1) In this Part—“qualifying individual” means a citizen or subject of, or an individual

habitually resident in, a qualifying country; and“qualifying person” means a qualifying individual or a body corporate or

other body having legal personality which—(a) is formed under the law of a part of the United Kingdom or another qualifying

country, and(b) has in any qualifying country a place of business at which substantial business

activity is carried on.


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(2) References in this Part to a qualifying person include the Crown and the governmentof any other qualifying country.

(3) In this section “qualifying country” means—(a) the United Kingdom,(b) a country to which this Part extends by virtue of an Order under section 255,(c) another member State of the European Economic Community, or(d) to the extent that an Order under section 256 so provides, a country designated

under that section as enjoying reciprocal protection.

(4) The reference in the definition of “qualifying individual” to a person’s being a citizenor subject of a qualifying country shall be construed—

(a) in relation to the United Kingdom, as a reference to his being a British citizen,and

(b) in relation to a colony of the United Kingdom, as a reference to his being aBritish Dependent Territories’ citizen by connection with that colony.

(5) In determining for the purpose of the definition of “qualifying person” whethersubstantial business activity is carried on at a place of business in any country, noaccount shall be taken of dealings in goods which are at all material times outside thatcountry.

218 Qualification by reference to designer.

(1) This section applies to a design which is not created in pursuance of a commission orin the course of employment.

(2) A design to which this section applies qualifies for design right protection if thedesigner is a qualifying individual or, in the case of a computer-generated design, aqualifying person.

(3) A joint design to which this section applies qualifies for design right protection if anyof the designers is a qualifying individual or, as the case may be, a qualifying person.

(4) Where a joint design qualifies for design right protection under this section, only thosedesigners who are qualifying individuals or qualifying persons are entitled to designright under section 215(1) (first ownership of design right: entitlement of designer).

219 Qualification by reference to commissioner or employer.

(1) A design qualifies for design right protection if it is created in pursuance of acommission from, or in the course of employment with, a qualifying person.

(2) In the case of a joint commission or joint employment a design qualifies for designright protection if any of the commissioners or employers is a qualifying person.

(3) Where a design which is jointly commissioned or created in the course of jointemployment qualifies for design right protection under this section, only thosecommissioners or employers who are qualifying persons are entitled to designright under section 215(2) or (3) (first ownership of design right: entitlement ofcommissioner or employer).


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220 Qualification by reference to first marketing.

(1) A design which does not qualify for design right protection under section 218 or 219(qualification by reference to designer, commissioner or employer) qualifies for designright protection if the first marketing of articles made to the design—

(a) is by a qualifying person who is exclusively authorised to put such articles onthe market in the United Kingdom, and

(b) takes place in the United Kingdom, another country to which this Part extendsby virtue of an Order under section 255, or another member State of theEuropean Economic Community.

(2) If the first marketing of articles made to the design is done jointly by two or morepersons, the design qualifies for design right protection if any of those persons meetsthe requirements specified in subsection (1)(a).

(3) In such a case only the persons who meet those requirements are entitled to designright under section 215(4) (first ownership of design right: entitlement of first marketerof articles made to the design).

(4) In subsection (1)(a) “exclusively authorised” refers—(a) to authorisation by the person who would have been first owner of design

right as designer, commissioner of the design or employer of the designer ifhe had been a qualifying person, or by a person lawfully claiming under sucha person, and

(b) to exclusivity capable of being enforced by legal proceedings in the UnitedKingdom.

221 Power to make further provision as to qualification.

(1) Her Majesty may, with a view to fulfilling an international obligation of the UnitedKingdom, by Order in Council provide that a design qualifies for design rightprotection if such requirements as are specified in the Order are met.

(2) An Order may make different provision for different descriptions of design or article;and may make such consequential modifications of the operation of sections 215(ownership of design right) and sections 218 to 220 (other means of qualification) asappear to Her Majesty to be appropriate.


Dealings with design right

222 Assignment and licences.

(1) Design right is transmissible by assignment, by testamentary disposition or byoperation of law, as personal or moveable property.

(2) An assignment or other transmission of design right may be partial, that is, limitedso as to apply—

(a) to one or more, but not all, of the things the design right owner has theexclusive right to do;

(b) to part, but not the whole, of the period for which the right is to subsist.


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(3) An assignment of design right is not effective unless it is in writing signed by or onbehalf of the assignor.

(4) A licence granted by the owner of design right is binding on every successor in title tohis interest in the right, except a purchaser in good faith for valuable consideration andwithout notice (actual or constructive) of the licence or a person deriving title fromsuch a purchaser; and references in this Part to doing anything with, or without, thelicence of the design right owner shall be construed accordingly.

223 Prospective ownership of design right.

(1) Where by an agreement made in relation to future design right, and signed by or onbehalf of the prospective owner of the design right, the prospective owner purports toassign the future design right (wholly or partially) to another person, then if, on theright coming into existence, the assignee or another person claiming under him wouldbe entitled as against all other persons to require the right to be vested in him, the rightshall vest in him by virtue of this section.

(2) In this section—“future design right” means design right which will or may come into

existence in respect of a future design or class of designs or on the occurrenceof a future event; and

“prospective owner” shall be construed accordingly, and includes a personwho is prospectively entitled to design right by virtue of such an agreementas is mentioned in subsection (1).

(3) A licence granted by a prospective owner of design right is binding on every successorin title to his interest (or prospective interest) in the right, except a purchaser in goodfaith for valuable consideration and without notice (actual or constructive) of thelicence or a person deriving title from such a purchaser; and references in this Partto doing anything with, or without, the licence of the design right owner shall beconstrued accordingly.

224 Assignment of right in registered design presumed to carry with it design right.

Where a design consisting of a design in which design right subsists is registered underthe M43Registered Designs Act 1949 and the proprietor of the registered design is alsothe design right owner, an assignment of the right in the registered design shall betaken to be also an assignment of the design right, unless a contrary intention appears.


225 Exclusive licences.

(1) In this Part an “exclusive licence” means a licence in writing signed by or on behalfof the design right owner authorising the licensee to the exclusion of all other persons,including the person granting the licence, to exercise a right which would otherwisebe exercisable exclusively by the design right owner.



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(2) The licensee under an exclusive licence has the same rights against any successor intitle who is bound by the licence as he has against the person granting the licence.

CHAPTER II

RIGHTS OF DESIGN RIGHT OWNER AND REMEDIES

Infringement of design right

226 Primary infringement of design right.

(1) The owner of design right in a design has the exclusive right to reproduce the designfor commercial purposes—

(a) by making articles to that design, or(b) by making a design document recording the design for the purpose of enabling

such articles to be made.

(2) Reproduction of a design by making articles to the design means copying the designso as to produce articles exactly or substantially to that design, and references in thisPart to making articles to a design shall be construed accordingly.

(3) Design right is infringed by a person who without the licence of the design rightowner does, or authorises another to do, anything which by virtue of this section isthe exclusive right of the design right owner.

(4) For the purposes of this section reproduction may be direct or indirect, and it isimmaterial whether any intervening acts themselves infringe the design right.

(5) This section has effect subject to the provisions of Chapter III (exceptions to rightsof design right owner).

227 Secondary infringement: importing or dealing with infringing article.

(1) Design right is infringed by a person who, without the licence of the design rightowner—

(a) imports into the United Kingdom for commercial purposes, or(b) has in his possession for commercial purposes, or(c) sells, lets for hire, or offers or exposes for sale or hire, in the course of a

business,an article which is, and which he knows or has reason to believe is, an infringing article.

(2) This section has effect subject to the provisions of Chapter III (exceptions to rightsof design right owner).

228 Meaning of “infringing article”.

(1) In this Part “infringing article”, in relation to a design, shall be construed in accordancewith this section.

(2) An article is an infringing article if its making to that design was an infringement ofdesign right in the design.

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(3) An article is also an infringing article if—(a) it has been or is proposed to be imported into the United Kingdom, and(b) its making to that design in the United Kingdom would have been an

infringement of design right in the design or a breach of an exclusive licenceagreement relating to the design.

(4) Where it is shown that an article is made to a design in which design right subsistsor has subsisted at any time, it shall be presumed until the contrary is proved that thearticle was made at a time when design right subsisted.

(5) Nothing in subsection (3) shall be construed as applying to an article whichmay lawfully be imported into the United Kingdom by virtue of any enforceableCommunity right within the meaning of section 2(1) of the M44European CommunitiesAct 1972.

(6) The expression “infringing article” does not include a design document,notwithstanding that its making was or would have been an infringement of designright.


Remedies for infringement

229 Rights and remedies of design right owner.

(1) An infringement of design right is actionable by the design right owner.

(2) In an action for infringement of design right all such relief by way of damages,injunctions, accounts or otherwise is available to the plaintiff as is available in respectof the infringement of any other property right.

(3) The court may in an action for infringement of design right, having regard to all thecircumstances and in particular to—


award such additional damages as the justice of the case may require.

(4) This section has effect subject to section 233 (innocent infringement).


(1) Where a person—(a) has in his possession, custody or control for commercial purposes an

infringing article, or(b) has in his possession, custody or control anything specifically designed or

adapted for making articles to a particular design, knowing or having reasonto believe that it has been or is to be used to make an infringing article,






the owner of the design right in the design in question may apply to the court for anorder that the infringing article or other thing be delivered up to him or to such otherperson as the court may direct.

(2) An application shall not be made after the end of the period specified in the followingprovisions of this section; and no order shall be made unless the court also makes, orit appears to the court that there are grounds for making, an order under section 231(order as to disposal of infringing article, &c.).

(3) An application for an order under this section may not be made after the end of theperiod of six years from the date on which the article or thing in question was made,subject to subsection (4).

(4) If during the whole or any part of that period the design right owner—(a) is under a disability, or(b) is prevented by fraud or concealment from discovering the facts entitling him

to apply for an order,an application may be made at any time before the end of the period of six years fromthe date on which he ceased to be under a disability or, as the case may be, could withreasonable diligence have discovered those facts.


and Limitation (Scotland) Act 1973;(c) in Northern Ireland, has the same meaning as in the M47Statute of Limitations


(6) A person to whom an infringing article or other thing is delivered up in pursuanceof an order under this section shall, if an order under section 231 is not made, retainit pending the making of an order, or the decision not to make an order, under thatsection.



231 Order as to disposal of infringing articles, &c.

(1) An application may be made to the court for an order that an infringing article or otherthing delivered up in pursuance of an order under section 230 shall be—

(a) forfeited to the design right owner, or(b) destroyed or otherwise dealt with as the court may think fit,

or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whetherother remedies available in an action for infringement of design right would beadequate to compensate the design right owner and to protect his interests.




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(3) Provision shall be made by rules of court as to the service of notice on persons havingan interest in the article or other thing, and any such person is entitled—


(b) to appeal against any order made, whether or not he appeared;and an order shall not take effect until the end of the period within which notice of anappeal may be given or, if before the end of that period notice of appeal is duly given,until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in an article or other thing, the courtshall make such order as it thinks just and may (in particular) direct that the thing besold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the personin whose possession, custody or control the article or other thing was before beingdelivered up or seized is entitled to its return.

(6) References in this section to a person having an interest in an article or other thinginclude any person in whose favour an order could be made in respect of it under thissection or under section 114 or 204 of this Act or section 58C of the M48Trade MarksAct 1938 (which make similar provision in relation to infringement of copyright, rightsin performances and trade marks).




section 230 (order for delivery up of infringing article, &c.),section 231 (order as to disposal of infringing article, &c.), orsection 235(5) (application by exclusive licensee having concurrent rights),

where the value of the infringing articles and other things in question does not exceedthe county court limit for actions in tort.

(2) In Scotland proceedings for an order under any of those provisions may be broughtin the sheriff court.


233 Innocent infringement.

(1) Where in an action for infringement of design right brought by virtue of section 226(primary infringement) it is shown that at the time of the infringement the defendantdid not know, and had no reason to believe, that design right subsisted in the designto which the action relates, the plaintiff is not entitled to damages against him, butwithout prejudice to any other remedy.






(2) Where in an action for infringement of design right brought by virtue of section 227(secondary infringement) a defendant shows that the infringing article was innocentlyacquired by him or a predecessor in title of his, the only remedy available against himin respect of the infringement is damages not exceeding a reasonable royalty in respectof the act complained of.

(3) In subsection (2) “innocently acquired” means that the person acquiring the article didnot know and had no reason to believe that it was an infringing article.

234 Rights and remedies of exclusive licensee.

(1) An exclusive licensee has, except against the design right owner, the same rights andremedies in respect of matters occurring after the grant of the licence as if the licencehad been an assignment.

(2) His rights and remedies are concurrent with those of the design right owner; andreferences in the relevant provisions of this Part to the design right owner shall beconstrued accordingly.

(3) In an action brought by an exclusive licensee by virtue of this section a defendant mayavail himself of any defence which would have been available to him if the action hadbeen brought by the design right owner.

235 Exercise of concurrent rights.

(1) Where an action for infringement of design right brought by the design right owner oran exclusive licensee relates (wholly or partly) to an infringement in respect of whichthey have concurrent rights of action, the design right owner or, as the case may be,the exclusive licensee may not, without the leave of the court, proceed with the actionunless the other is either joined as a plaintiff or added as a defendant.

(2) A design right owner or exclusive licensee who is added as a defendant in pursuanceof subsection (1) is not liable for any costs in the action unless he takes part in theproceedings.

(3) The above provisions do not affect the granting of interlocutory relief on theapplication of the design right owner or an exclusive licensee.

(4) Where an action for infringement of design right is brought which relates (wholly orpartly) to an infringement in respect of which the design right owner and an exclusivelicensee have concurrent rights of action—

(a) the court shall, in assessing damages, take into account—(i) the terms of the licence, and



(c) the court shall if an account of profits is directed apportion the profits betweenthem as the court considers just, subject to any agreement between them;

and these provisions apply whether or not the design right owner and the exclusivelicensee are both parties to the action.

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(5) The design right owner shall notify any exclusive licensee having concurrent rightsbefore applying for an order under section 230 (order for delivery up of infringingarticle, &c.); and the court may on the application of the licensee make such orderunder that section as it thinks fit having regard to the terms of the licence.

CHAPTER III

EXCEPTIONS TO RIGHTS OF DESIGN RIGHT OWNERS

Infringement of copyright

236 Infringement of copyright.

Where copyright subsists in a work which consists of or includes a design in whichdesign right subsists, it is not an infringement of design right in the design to doanything which is an infringement of the copyright in that work.

Availability of licences of right

237 Licences available in last five years of design right.

(1) Any person is entitled as of right to a licence to do in the last five years of the designright term anything which would otherwise infringe the design right.

(2) The terms of the licence shall, in default of agreement, be settled by the comptroller.

(3) The Secretary of State may if it appears to him necessary in order to—(a) comply with an international obligation of the United Kingdom, or(b) secure or maintain reciprocal protection for British designs in other countries,

by order exclude from the operation of subsection (1) designs of a description specifiedin the order or designs applied to articles of a description so specified.


238 Powers exercisable for protection of the public interest.

(1) Where the matters specified in a report of the Monopolies and Mergers Commissionas being those which in the Commission’s opinion operate, may be expected to operateor have operated against the public interest include—

(a) conditions in licences granted by a design right owner restricting the use ofthe design by the licensee or the right of the design right owner to grant otherlicences, or

(b) a refusal of a design right owner to grant licences on reasonable terms,the powers conferred by Part I of Schedule 8 to the M49Fair Trading Act 1973 (powersexercisable for purpose of remedying or preventing adverse effects specified in reportof Commission) include power to cancel or modify those conditions and, instead or


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in addition, to provide that licences in respect of the design right shall be availableas of right.

(2) The references in sections 56(2) and 73(2) of that Act, and sections 10(2)(b) and 12(5)of the M50Competition Act 1980, to the powers specified in that Part of that Scheduleshall be construed accordingly.

(3) The terms of a licence available by virtue of this section shall, in default of agreement,be settled by the comptroller.


239 Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of design right in a design in respect of which alicence is available as of right under section 237 or 238 the defendant undertakes totake a licence on such terms as may be agreed or, in default of agreement, settled bythe comptroller under that section—



(2) An undertaking may be given at any time before final order in the proceedings, withoutany admission of liability.


Crown use of designs

240 Crown use of designs.

(1) A government department, or a person authorised in writing by a governmentdepartment, may without the licence of the design right owner—

(a) do anything for the purpose of supplying articles for the services of the Crown,or

(b) dispose of articles no longer required for the services of the Crown;and nothing done by virtue of this section infringes the design right.

(2) References in this Part to “the services of the Crown” are to—(a) the defence of the realm,(b) foreign defence purposes, and(c) health service purposes.

(3) The reference to the supply of articles for “foreign defence purposes” is to theirsupply—




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(a) for the defence of a country outside the realm in pursuance of an agreementor arrangement to which the government of that country and Her Majesty’sGovernment in the United Kingdom are parties; or

(b) for use by armed forces operating in pursuance of a resolution of the UnitedNations or one of its organs.

(4) The reference to the supply of articles for “health service purposes” are to their supplyfor the purpose of providing—

(a) pharmaceutical services,(b) general medical services, or(c) general dental services,

that is, services of those kinds under Part II of the M51National Health Service Act 1977,Part II of the M52National Health Service (Scotland) Act 1978 or the correspondingprovisions of the law in force in Northern Ireland.

(5) In this Part—“Crown use”, in relation to a design, means the doing of anything by virtue

of this section which would otherwise be an infringement of design right inthe design; and

“the government department concerned”, in relation to such use, means thegovernment department by whom or on whose authority the act was done.

(6) The authority of a government department in respect of Crown use of a design maybe given to a person either before or after the use and whether or not he is authorised,directly or indirectly, by the design right owner to do anything in relation to the design.

(7) A person acquiring anything sold in the exercise of powers conferred by this section,and any person claiming under him, may deal with it in the same manner as if thedesign right were held on behalf of the Crown.


241 Settlement of terms for Crown use.

(1) Where Crown use is made of a design, the government department concerned shall—(a) notify the design right owner as soon as practicable, and(b) give him such information as to the extent of the use as he may from time to

time require,unless it appears to the department that it would be contrary to the public interest to doso or the identity of the design right owner cannot be ascertained on reasonable inquiry.

(2) Crown use of a design shall be on such terms as, either before or after the use, areagreed between the government department concerned and the design right owner withthe approval of the Treasury or, in default of agreement, are determined by the court.

In the application of this subsection to Northern Ireland the reference to the Treasuryshall, where the government department referred to in that subsection is a NorthernIreland department, be construed as a reference to the Department of Finance andPersonnel.




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(3) Where the identity of the design right owner cannot be ascertained on reasonableinquiry, the government department concerned may apply to the court who may orderthat no royalty or other sum shall be payable in respect of Crown use of the designuntil the owner agrees terms with the department or refers the matter to the court fordetermination.

242 Rights of third parties in case of Crown use.

(1) The provisions of any licence, assignment or agreement made between the designright owner (or anyone deriving title from him or from whom he derives title) and anyperson other than a government department are of no effect in relation to Crown useof a design, or any act incidental to Crown use, so far as they—

(a) restrict or regulate anything done in relation to the design, or the use of anymodel, document or other information relating to it, or

(b) provide for the making of payments in respect of, or calculated by referenceto such use;

and the copying or issuing to the public of copies of any such model or documentin connection with the thing done, or any such use, shall be deemed not to be aninfringement of any copyright in the model or document.

(2) Subsection (1) shall not be construed as authorising the disclosure of any such model,document or information in contravention of the licence, assignment or agreement.

(3) Where an exclusive licence is in force in respect of the design—(a) if the licence was granted for royalties—

(i) any agreement between the design right owner and a governmentdepartment under section 241 (settlement of terms for Crown use)requires the consent of the licensee, and

(ii) the licensee is entitled to recover from the design right owner suchpart of the payment for Crown use as may be agreed between themor, in default of agreement, determined by the court;

(b) if the licence was granted otherwise than for royalties—(i) section 241 applies in relation to anything done which but for

section 240 (Crown use) and subsection (1) above would be aninfringement of the rights of the licensee with the substitution forreferences to the design right owner of references to the licensee, and

(ii) section 241 does not apply in relation to anything done by the licenseeby virtue of an authority given under section 240.

(4) Where the design right has been assigned to the design right owner in considerationof royalties—

(a) section 241 applies in relation to Crown use of the design as if the referencesto the design right owner included the assignor, and any payment for Crownuse shall be divided between them in such proportion as may be agreed or, indefault of agreement, determined by the court; and

(b) section 241 applies in relation to any act incidental to Crown use as it appliesin relation to Crown use of the design.

(5) Where any model, document or other information relating to a design is used inconnection with Crown use of the design, or any act incidental to Crown use,section 241 applies to the use of the model, document or other information with the


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substitution for the references to the design right owner of references to the personentitled to the benefit of any provision of an agreement rendered inoperative bysubsection (1) above.

(6) In this section—“act incidental to Crown use” means anything done for the services of the

Crown to the order of a government department by the design right owner inrespect of a design;

“payment for Crown use” means such amount as is payable by thegovernment department concerned by virtue of section 241; and

“royalties” includes any benefit determined by reference to the use of thedesign.

243 Crown use: compensation for loss of profit.

(1) Where Crown use is made of a design, the government department concerned shallpay—

(a) to the design right owner, or(b) if there is an exclusive licence in force in respect of the design, to the exclusive

licensee,compensation for any loss resulting from his not being awarded a contract to supplythe articles made to the design.

(2) Compensation is payable only to the extent that such a contract could have beenfulfilled from his existing manufacturing capacity; but is payable notwithstanding theexistence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been madeon such a contract and to the extent to which any manufacturing capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts for the supplyof articles made to the design otherwise than for the services of the Crown.

(5) The amount payable shall, if not agreed between the design right owner or licenseeand the government department concerned with the approval of the Treasury, bedetermined by the court on a reference under section 252; and it is in addition to anyamount payable under section 241 or 242.

(6) In the application of this section to Northern Ireland, the reference in subsection (5) tothe Treasury shall, where the government department concerned is a Northern Irelanddepartment, be construed as a reference to the Department of Finance and Personnel.

244 Special provision for Crown use during emergency.

(1) During a period of emergency the powers exercisable in relation to a design by virtueof section 240 (Crown use) include power to do any act which would otherwise bean infringement of design right for any purpose which appears to the governmentdepartment concerned necessary or expedient—

(a) for the efficient prosecution of any war in which Her Majesty may be engaged;(b) for the maintenance of supplies and services essential to the life of the

community;


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(c) for securing a sufficiency of supplies and services essential to the well-beingof the community;

(d) for promoting the productivity of industry, commerce and agriculture;(e) for fostering and directing exports and reducing imports, or imports of any

classes, from all or any countries and for redressing the balance of trade;(f) generally for ensuring that the whole resources of the community are available

for use, and are used, in a manner best calculated to serve the interests of thecommunity; or

(g) for assisting the relief of suffering and the restoration and distribution ofessential supplies and services in any country outside the United Kingdomwhich is in grave distress as the result of war.

(2) References in this Part to the services of the Crown include, as respects a period ofemergency, those purposes; and references to “Crown use” include any act whichwould apart from this section be an infringement of design right.

(3) In this section “period of emergency” means a period beginning with such date as maybe declared by Order in Council to be the beginning, and ending with such date as maybe so declared to be the end, of a period of emergency for the purposes of this section.

(4) No Order in Council under this section shall be submitted to Her Majesty unless a draftof it has been laid before and approved by a resolution of each House of Parliament.

General

245 Power to provide for further exceptions.

(1) The Secretary of State may if it appears to him necessary in order to—(a) comply with an international obligation of the United Kingdom, or(b) secure or maintain reciprocal protection for British designs in other countries,

by order provide that acts of a description specified in the order do not infringe designright.

(2) An order may make different provision for different descriptions of design or article.

(3) An order shall be made by statutory instrument and no order shall be made unlessa draft of it has been laid before and approved by a resolution of each House ofParliament.

CHAPTER IV

JURISDICTION OF THE COMPTROLLER AND THE COURT

Jurisdiction of the comptroller

246 Jurisdiction to decide matters relating to design right.

(1) A party to a dispute as to any of the following matters may refer the dispute to thecomptroller for his decision—

(a) the subsistence of design right,

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(b) the term of design right, or(c) the identity of the person in whom design right first vested;

and the comptroller’s decision on the reference is binding on the parties to the dispute.

(2) No other court or tribunal shall decide any such matter except—(a) on a reference or appeal from the comptroller,(b) in infringement or other proceedings in which the issue arises incidentally, or(c) in proceedings brought with the agreement of the parties or the leave of the

comptroller.

(3) The comptroller has jurisdiction to decide any incidental question of fact or law arisingin the course of a reference under this section.

247 Application to settle terms of licence of right.

(1) A person requiring a licence which is available as of right by virtue of—(a) section 237 (licences available in last five years of design right), or(b) an order under section 238 (licences made available in the public interest),

may apply to the comptroller to settle the terms of the licence.

(2) No application for the settlement of the terms of a licence available by virtue ofsection 237 may be made earlier than one year before the earliest date on which thelicence may take effect under that section.

(3) The terms of a licence settled by the comptroller shall authorise the licensee to do—(a) in the case of licence available by virtue of section 237, everything which

would be an infringement of the design right in the absence of a licence;(b) in the case of a licence available by virtue of section 238, everything in respect

of which a licence is so available.

(4) In settling the terms of a licence the comptroller shall have regard to such factors asmay be prescribed by the Secretary of State by order made by statutory instrument.

(5) No such order shall be made unless a draft of it has been laid before and approved bya resolution of each House of Parliament.

(6) Where the terms of a licence are settled by the comptroller, the licence has effect—(a) in the case of an application in respect of a licence available by virtue of

section 237 made before the earliest date on which the licence may take effectunder that section, from that date;

(b) in any other case, from the date on which the application to the comptrollerwas made.

248 Settlement of terms where design right owner unknown.

(1) This section applies where a person making an application under section 247(settlement of terms of licence of right) is unable on reasonable inquiry to discoverthe identity of the design right owner.

(2) The comptroller may in settling the terms of the licence order that the licence shall befree of any obligation as to royalties or other payments.


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(3) If such an order is made the design right owner may apply to the comptroller to varythe terms of the licence with effect from the date on which his application is made.

(4) If the terms of a licence are settled by the comptroller and it is subsequently establishedthat a licence was not available as of right, the licensee shall not be liable in damagesfor, or for an account of profits in respect of, anything done before he was aware ofany claim by the design right owner that a licence was not available.

249 Appeals as to terms of licence of right.

(1) An appeal lies from any decision of the comptroller under section 247 or 248(settlement of terms of licence of right) to the Appeal Tribunal constituted undersection 28 of the M53Registered Designs Act 1949.

(2) Section 28 of that Act applies to appeals from the comptroller under this section as itapplies to appeals from the registrar under that Act; but rules made under that sectionmay make different provision for appeals under this section.


250 Rules.

(1) The Secretary of State may make rules for regulating the procedure to be followed inconnection with any proceeding before the comptroller under this Part.

(2) Rules may, in particular, make provision—(a) prescribing forms;(b) requiring fees to be paid;(c) authorising the rectification of irregularities of procedure;(d) regulating the mode of giving evidence and empowering the comptroller to

compel the attendance of witnesses and the discovery of and production ofdocuments;

(e) providing for the appointment of advisers to assist the comptroller inproceedings before him;

(f) prescribing time limits for doing anything required to be done (and providingfor the alteration of any such limit); and

(g) empowering the comptroller to award costs and to direct how, to what partyand from what parties, costs are to be paid.

(3) Rules prescribing fees require the consent of the Treasury.

(4) The remuneration of an adviser appointed to assist the comptroller shall be determinedby the Secretary of State with the consent of the Treasury and shall be defrayed outof money provided by Parliament.

(5) Rules shall be made by statutory instrument which shall be subject to annulment inpursuance of a resolution of either House of Parliament.


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Jurisdiction of the court

251 References and appeals on design right matters.

(1) In any proceedings before him under section 246 (reference of matter relating to designright), the comptroller may at any time order the whole proceedings or any questionor issue (whether of fact or law) to be referred, on such terms as he may direct, to theHigh Court or, in Scotland, the Court of Session.

(2) The comptroller shall make such an order if the parties to the proceedings agree thathe should do so.

(3) On a reference under this section the court may exercise any power available to thecomptroller by virtue of this Part as respects the matter referred to it and, followingits determination, may refer any matter back to the comptroller.

(4) An appeal lies from any decision of the comptroller in proceedings before him undersection 246 (decisions on matters relating to design right) to the High Court or, inScotland, the Court of Session.

252 Reference of disputes relating to Crown use.

(1) A dispute as to any matter which falls to be determined by the court in default ofagreement under—

(a) section 241 (settlement of terms for Crown use),(b) section 242 (rights of third parties in case of Crown use), or(c) section 243 (Crown use: compensation for loss of profit),

may be referred to the court by any party to the dispute.

(2) In determining a dispute between a government department and any person as to theterms for Crown use of a design the court shall have regard to—

(a) any sums which that person or a person from whom he derives title hasreceived or is entitled to receive, directly or indirectly, from any governmentdepartment in respect of the design; and

(b) whether that person or a person from whom he derives title has in the court’sopinion without reasonable cause failed to comply with a request of thedepartment for the use of the design on reasonable terms.

(3) One of two or more joint owners of design right may, without the concurrence of theothers, refer a dispute to the court under this section, but shall not do so unless theothers are made parties; and none of those others is liable for any costs unless he takespart in the proceedings.

(4) Where the consent of an exclusive licensee is required by section 242(3)(a)(i) to thesettlement by agreement of the terms for Crown use of a design, a determination bythe court of the amount of any payment to be made for such use is of no effect unlessthe licensee has been notified of the reference and given an opportunity to be heard.

(5) On the reference of a dispute as to the amount recoverable as mentioned insection 242(3)(a)(ii) (right of exclusive licensee to recover part of amount payableto design right owner) the court shall determine what is just having regard to anyexpenditure incurred by the licensee—

(a) in developing the design, or


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(b) in making payments to the design right owner in consideration of the licence(other than royalties or other payments determined by reference to the use ofthe design).

(6) In this section “the court” means—(a) in England and Wales, the High Court or any patents county court having

jurisdiction by virtue of an order under section 287 of this Act,(b) in Scotland, the Court of Session, and(c) in Northern Ireland, the High Court.

CHAPTER V


Miscellaneous

253 Remedy for groundless threats of infringement proceedings.

(1) Where a person threatens another person with proceedings for infringement of designright, a person aggrieved by the threats may bring an action against him claiming—

(a) a declaration to the effect that the threats are unjustifiable;(b) an injunction against the continuance of the threats;(c) damages in respect of any loss which he has sustained by the threats.

(2) If the plaintiff proves that the threats were made and that he is a person aggrieved bythem, he is entitled to the relief claimed unless the defendant shows that the acts inrespect of which proceedings were threatened did constitute, or if done would haveconstituted, an infringement of the design right concerned.

(3) Proceedings may not be brought under this section in respect of a threat to bringproceedings for an infringement alleged to consist of making or importing anything.

(4) Mere notification that a design is protected by design right does not constitute a threatof proceedings for the purposes of this section.

254 Licensee under licence of right not to claim connection with design right owner.

(1) A person who has a licence in respect of a design by virtue of section 237 or 238(licences of right) shall not, without the consent of the design right owner—

(a) apply to goods which he is marketing, or proposes to market, in reliance onthat licence a trade description indicating that he is the licensee of the designright owner, or

(b) use any such trade description in an advertisement in relation to such goods.

(2) A contravention of subsection (1) is actionable by the design right owner.

(3) In this section “trade description”, the reference to applying a trade description togoods and “advertisement” have the same meaning as in the M54Trade DescriptionsAct 1968.

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Extent of operation of this Part

255 Countries to which this Part extends.

(1) This Part extends to England and Wales, Scotland and Northern Ireland.

(2) Her Majesty may by Order in Council direct that this Part shall extend, subject to suchexceptions and modifications as may be specified in the Order, to—

(a) any of the Channel Islands,(b) the Isle of Man, or(c) any colony.

(3) That power includes power to extend, subject to such exceptions and modifications asmay be specified in the Order, any Order in Council made under section 221 (furtherprovision as to qualification for design right protection) or section 256 (countriesenjoying reciprocal protection).

(4) The legislature of a country to which this Part has been extended may modify or addto the provisions of this Part, in their operation as part of the law of that country, asthe legislature may consider necessary to adapt the provisions to the circumstances ofthat country; but not so as to deny design right protection in a case where it wouldotherwise exist.

(5) Where a country to which this Part extends ceases to be a colony of the UnitedKingdom, it shall continue to be treated as such a country for the purposes of this Partuntil—

(a) an Order in Council is made under section 256 designating it as a countryenjoying reciprocal protection, or

(b) an Order in Council is made declaring that it shall cease to be so treated byreason of the fact that the provisions of this Part as part of the law of thatcountry have been amended or repealed.

(6) A statutory instrument containing an Order in Council under subsection (5)(b) shallbe subject to annulment in pursuance of a resolution of either House of Parliament.

256 Countries enjoying reciprocal protection.

(1) Her Majesty may, if it appears to Her that the law of a country provides adequateprotection for British designs, by Order in Council designate that country as oneenjoying reciprocal protection under this Part.

(2) If the law of a country provides adequate protection only for certain classes of Britishdesign, or only for designs applied to certain classes of article, any Order designatingthat country shall contain provision limiting, to a corresponding extent, the protectionafforded by this Part in relation to designs connected with that country.

(3) An Order under this section shall be subject to annulment in pursuance of a resolutionof either House of Parliament.






257 Territorial waters and the continental shelf.





Interpretation

258 Construction of references to design right owner.

(1) Where different persons are (whether in consequence of a partial assignment orotherwise) entitled to different aspects of design right in a work, the design right ownerfor any purpose of this Part is the person who is entitled to the right in the respectrelevant for that purpose.

(2) Where design right (or any aspect of design right) is owned by more than one personjointly, references in this Part to the design right owner are to all the owners, so that,in particular, any requirement of the licence of the design right owner requires thelicence of all of them.

259 Joint designs.

(1) In this Part a “joint design” means a design produced by the collaboration of two ormore designers in which the contribution of each is not distinct from that of the otheror others.

(2) References in this Part to the designer of a design shall, except as otherwise provided,be construed in relation to a joint design as references to all the designers of the design.

260 Application of provisions to articles in kit form.

(1) The provisions of this Part apply in relation to a kit, that is, a complete or substantiallycomplete set of components intended to be assembled into an article, as they apply inrelation to the assembled article.

(2) Subsection (1) does not affect the question whether design right subsists in any aspectof the design of the components of a kit as opposed to the design of the assembledarticle.


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261 Requirement of signature: application in relation to body corporate.

The requirement in the following provisions that an instrument be signed by or onbehalf of a person is also satisfied in the case of a body corporate by the affixing ofits seal—

section 222(3) (assignment of design right),section 223(1) (assignment of future design right),section 225(1) (grant of exclusive licence).

262 Adaptation of expressions in relation to Scotland.

In the application of this Part to Scotland—“account of profits” means accounting and payment of profits;“accounts” means count, reckoning and payment;“assignment” means assignation;“costs” means expenses;“defendant” means defender;“delivery up” means delivery;“injunction” means interdict;“interlocutory relief” means interim remedy; and“plaintiff” means pursuer.

263 Minor definitions.

(1) In this Part—“British design” means a design which qualifies for design right protection

by reason of a connection with the United Kingdom of the designer or theperson by whom the design is commissioned or the designer is employed;

“business” includes a trade or profession;“commission” means a commission for money or money’s worth;“the comptroller” means the Comptroller-General of Patents, Designs and

Trade Marks;“computer-generated”, in relation to a design, means that the design is

generated by computer in circumstances such that there is no human designer,“country” includes any territory;“the Crown” includes the Crown in right of Her Majesty’s Government in

Northern Ireland;“design document” means any record of a design, whether in the form of

a drawing, a written description, a photograph, data stored in a computer orotherwise;

“employee”, “employment” and “employer” refer to employment under acontract of service or of apprenticeship;

“government department” includes a Northern Ireland department.

(2) References in this Part to “marketing”, in relation to an article, are to its being soldor let for hire, or offered or exposed for sale or hire, in the course of a business, andrelated expressions shall be construed accordingly; but no account shall be taken forthe purposes of this Part of marketing which is merely colourable and not intended tosatisfy the reasonable requirements of the public.





(3) References in this Part to an act being done in relation to an article for “commercialpurposes” are to its being done with a view to the article in question being sold orhired in the course of a business.

264 Index of defined expressions.


account of profits and accounts (inScotland)

section 262

assignment (in Scotland) section 262British designs section 263(1)business section 263(1)commercial purposes section 263(3)commission section 263(1)the comptroller section 263(1)computer-generated section 263(1)costs (in Scotland) section 262country section 263(1)the Crown section 263(1)Crown use sections 240(5) and 244(2)defendant (in Scotland) section 262delivery up (in Scotland) section 262design section 213(2)design document section 263(1)designer sections 214 and 259(2)design right section 213(1)design right owner sections 234(2) and 258employee, employment and employer section 263(1)exclusive licence section 225(1)government department section 263(1)government department concerned (inrelation to Crown use)

section 240(5)

infringing article section 228injunction (in Scotland) section 262interlocutory relief (in Scotland) section 262

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joint design section 259(1)licence (of the design right owner) sections 222(4), 223(3) and 258making articles to a design section 226(2)marketing (and related expressions) section 263(2)original section 213(4)plaintiff (in Scotland) section 262qualifying individual section 217(1)qualifying person sections 217(1) and (2)signed section 261

PART IV

REGISTERED DESIGNS

Modifications etc. (not altering text)C75 Pt. IV (ss. 265-273) extended (with modifications) (Isle of Man) (9.12.2001) by S.I. 2001/3678, art. 3,

Sch. 3

Amendments of the Registered Designs Act 1949

265 Registrable designs.

(1) For section 1 of the M56Registered Designs Act 1949 (designs registrable under thatAct) substitute—

“1 Designs registrable under Act.

(1) In this Act “design" means features of shape, configuration, pattern or ornamentapplied to an article by any industrial process, being features which in thefinished article appeal to and are judged by the eye, but does not include—

(a) a method or principle of construction, or(b) features of shape or configuration of an article which—

(i) are dictated solely by the function which the article has toperform, or

(ii) are dependent upon the appearance of another article of whichthe article is intended by the author of the design to form anintegral part.

(2) A design which is new may, upon application by the person claiming to bethe proprietor, be registered under this Act in respect of any article, or set ofarticles, specified in the application.

(3) A design shall not be registered in respect of an article if the appearance of thearticle is not material, that is, if aesthetic considerations are not normally takeninto account to a material extent by persons acquiring or using articles of that




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description, and would not be so taken into account if the design were to beapplied to the article.

(4) A design shall not be regarded as new for the purposes of this Act if it is thesame as a design—

(a) registered in respect of the same or any other article in pursuance ofa prior application, or

(b) published in the United Kingdom in respect of the same or any otherarticle before the date of the application,

or if it differs from such a design only in immaterial details or in features whichare variants commonly used in the trade.

This subsection has effect subject to the provisions of sections 4, 6 and 16 ofthis Act.

(5) The Secretary of State may by rules provide for excluding from registrationunder this Act designs for such articles of a primarily literary or artisticcharacter as the Secretary of State thinks fit”.

(2) The above amendment does not apply in relation to applications for registration madebefore the commencement of this Part; but the provisions of section 266 apply withrespect to the right in certain designs registered in pursuance of such an application.


266 Provisions with respect to certain designs registered in pursuance of applicationmade before commencement.

(1) Where a design is registered under the Registered Designs Act 1949 in pursuance ofan application made after 12th January 1988 and before the commencement of thispart which could not have been registered under section 1 of that Act as substitutedby section 265 above—

(a) the right in the registered design expires ten years after the commencement ofthis part, if it does not expire earlier in accordance with the 1949 Act, and

(b) any person is, after the commencement of this Part, entitled as of right toa licence to do anything which would otherwise infringe the right in theregistered design.

(2) The terms of a licence available by virtue of this section shall, in default of agreement,be settled by the registrar on an application by the person requiring the licence; andthe terms so settled shall authorise the licensee to do everything which would be aninfringement of the right in the registered design in the absence of a licence.

(3) In settling the terms of a licence the registrar shall have regard to such factors as maybe prescribed by the Secretary of State by order made by statutory instrument.

No such order shall be made unless a draft of it has been laid before and approved bya resolution of each House of Parliament.

(4) Where the terms of a licence are settled by the registrar, the licence has effect fromthe date on which the application to the registrar was made.



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(5) Section 11B of the 1949 Act (undertaking to take licence of right in infringementproceedings), as inserted by section 270 below, applies where a licence is available asof right under this section, as it applies where a licence is available as of right undersection 11A of that Act.

(6) Where a licence is available as of right under this section, a person to whom a licencewas granted before the commencement of this part may apply to the registrar for anorder adjusting the terms of that licence.

(7) an appeal lies from any decision of the registrar under this section.

(8) This section shall be construed as one with the Registered Designs Act 1949.

267 Authorship and first ownership of designs.

(1) Section 2 of the Registered Designs Act 1949 (proprietorship of designs) is amendedas follows.

(2) For subsection (1) substitute—

“(1) The author of a design shall be treated for the purposes of this Act as theoriginal proprietor of the design, subject to the following provisions.

(1A) Where a design is created in pursuance of a commission for money or money’sworth, the person commissioning the design shall be treated as the originalproprietor of the design.

(1B) Where, in a case not falling within subsection (1A), a design is created by anemployee in the course of his employment, his employer shall be treated asthe original proprietor of the design.”.

(3) After subsection (2) insert—

“(3) In this Act the “author” of a design means the person who creates it.

(4) In the case of a design generated by computer in circumstances such that thereis no human author, the person by whom the arrangements necessary for thecreation of thee design are made shall be taken to be the author.”.

(4) The amendments made by this section do not apply in relation to an application forregistration made before the commencement of this Part.

268 Right given by registration of design.

(1) For section 7 of the Registered Designs Act 1949 (right given by registration)substitute—

“7 Right given by registration.

(1) The registration of a design under this Act gives the registered proprietor theexclusive right—

(a) to make or import—(i) for sale or hire, or

(ii) for use for the purposes of a trade or business, or(b) to sell, hire or offer or expose for sale or hire,





an article in respect of which the design is registered and to which that designor a design not substantially different from it has been applied.

(2) The right in the registered design is infringed by a person who withoutthe licence of the registered proprietor does anything which by virtue ofsubsection (1) is the exclusive right of the proprietor.

(3) The right in the registered design is also infringed by a person who withoutthe licence of the registered proprietor makes anything for enabling any sucharticle to be made, in the United Kingdom or elsewhere, as mentioned insubsection (1).

(4) The right in the registered design is also infringed by a person who withoutthe licence of the registered proprietor—

(a) does anything in relation to a kit that would be an infringement if donein relation to the assembled article (see subsection (1)), or

(b) makes anything for enabling a kit to be made or assembled, in theUnited Kingdom or elsewhere, if the assembled article would be suchan article as is mentioned in subsection (1);

and for this purpose a “kit” means a complete or substantially complete set ofcomponents intended to be assembled into an article.

(5) No proceedings shall be taken in respect of an infringement committed beforethe date on which the certificate of registration of the design under this Actis granted.

(6) The right in a registered design is not infringed by the reproduction of a featureof the design which, by virtue of section 1(1)(b), is left out of account indetermining whether the design is registrable.”.

(2) The above amendment does not apply in relation to a design registered in pursuanceof an application made before the commencement of this Part.

269 Duration of right in registered design.

(1) For section 8 of the M57Registered Designs Act 1949 (period of right) substitute—

“8 Duration of right in registered design.

(1) The right in a registered design subsists in the first instance for a period offive years from the date of the registration of the design.

(2) The period for which the right subsists may be extended for a second, third,fourth and fifth period of five years, by applying to the registrar for anextension and paying the prescribed renewal fee.

(3) If the first, second, third or fourth period expires without such application andpayment being made, the right shall cease to have effect; and the registrarshall, in accordance with rules made by the Secretary of State, notify theproprietor of that fact.

(4) If during the period of six months immediately following the end of that periodan application for extension is made and the prescribed renewal fee and anyprescribed additional fee is paid, the right shall be treated as if it had neverexpired, with the result that—


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(a) anything done under or in relation to the right during that furtherperiod shall be treated as valid,

(b) an act which would have constituted an infringement of the right if ithad not expired shall be treated as an infringement, and

(c) an act which would have constituted use of the design for the servicesof the Crown if the right had not expired shall be treated as such use.

(5) Where it is shown that a registered design—(a) was at the time it was registered a corresponding design in relation to

an artistic work in which copyright subsists, and(b) by reason of a previous use of that work would not have been

registrable but for section 6(4) of this Act (registration despite certainprior applications of design),

the right in the registered design expires when the copyright in that workexpires, if that is earlier than the time at which it would otherwise expire, andit may not thereafter be renewed.

(6) The above provisions have effect subject to the proviso to section 4(1)(registration of same design in respect of other articles, &c.).

8A Restoration of lapsed right in design.

(1) Where the right in a registered design has expired by reason of a failure toextend, in accordance with section 8(2) or (4), the period for which the rightsubsists, an application for the restoration of the right in the design may bemade to the registrar within the prescribed period.

(2) The application may be made by the person who was the registered proprietorof the design or by any other person who would have been entitled to the rightin the design if it had not expired; and where the design was held by two ormore persons jointly, the application may, with the leave of the registrar, bemade by one or more of them without joining the others.

(3) Notice of the application shall be published by the registrar in the prescribedmanner.

(4) If the registrar is satisfied that the proprietor took reasonable care to see thatthe period for which the right subsisted was extended in accordance withsection 8(2) or (4), he shall, on payment of any unpaid renewal fee and anyprescribed additional fee, order the restoration of the right in the design.

(5) The order may be made subject to such conditions as the registrar thinks fit,and if the proprietor of the design does not comply with any condition theregistrar may revoke the order and give such consequential directions as hethinks fit.

(6) Rules altering the period prescribed for the purposes of subsection (1) maycontain such transitional provisions and savings as appear to the Secretary ofState to be necessary or expedient.

8B Effect of order for restoration of right.

(1)





The effect of an order under section 8A for the restoration of the right in aregistered design is as follows.

(2) Anything done under or in relation to the right during the period betweenexpiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted aninfringement if the right had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for an application for extensionto be made under section 8(4); or

(b) if it was a continuation or repetition of an earlier infringing act.

(4) If, after it was no longer possible for such an application for extension tobe made and before publication of notice of the application for restoration,a person—

(a) began in good faith to do an act which would have constituted aninfringement of the right in the design if it had not expired, or

(b) made in good faith effective and serious preparations to do such anact,

he has the right to continue to do the act or, as the case may be, to do the act,notwithstanding the restoration of the right in the design; but this does notextend to granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business,the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time beingin that business, and

(b) assign that right, or transmit it on death (or in the case of a bodycorporate on its dissolution), to any person who acquires that partof the business in the course of which the act was done or thepreparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred bysubsection (4) or subsection (5), that other and any person claiming throughhim may deal with the article in the same way as if it had been disposed of bythe registered proprietor of the design.

(7) The above provisions apply in relation to the use of a registered design forthe services of the Crown as they apply in relation to infringement of the rightin the design.”.

(2) The above amendment does not apply in relation to the right in a design registered inpursuance of an application made before the commencement of this Part.


270 Powers exercisable for protection of the public interest.

In the M58Registered Designs Act 1949 after section 11 insert—



199



“11A Powers exercisable for protection of the public interest.

(1) Where a report of the Monopolies and Mergers Commission has been laidbefore Parliament containing conclusions to the effect—

(a) on a monopoly reference, that a monopoly situation exists and factsfound by the Commission operate or may be expected to operateagainst the public interest,

(b) on a merger reference, that a merger situation qualifying forinvestigation has been created and the creation of the situation, orparticular elements in or consequences of it specified in the report,operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti-competitive practice which operated or may be expected to operateagainst the public interest, or

(d) on a reference under section 11 of the Competition Act 1980 (referenceof public bodies and certain other persons), that a person is pursuing acourse of conduct which operates against the public interest,

the appropriate Minister or Ministers may apply to the registrar to take actionunder this section.

(2) Before making an application the appropriate Minister or Ministers shallpublish, in such a manner as he or they think appropriate, a notice describing thenature of the proposed application and shall consider any representations whichmay be made within 30 days of such publication by persons whose interestsappear to him or them to be affected.

(3) If on an application under this section it appears to the registrar that the mattersspecified in the Commission’s report as being those which in the Commission’sopinion operate or operated or may be expected to operate against the publicinterest include—

(a) conditions in licences granted in respect of a registered design by itsproprietor restricting the use of the design by the licensee or the rightof the proprietor to grant other licences, or

(b) a refusal by the proprietor of a registered design to grant licences onreasonable terms,

he may by order cancel or modify any such condition or may, instead or inaddition, make an entry in the register to the effect that licences in respect ofthe design are to be available as of right.

(4) The terms of a licence available by virtue of this section shall, in default ofagreement, be settled by the registrar on an application by the person requiringthe licence; and terms so settled shall authorise the licensee to do everythingwhich would be an infringement of the right in the registered design in theabsence of a licence.

(5) Where the terms of a licence are settled by the registrar the licence has effectfrom the date on which the application to him was made.

(6) An appeal lies from any order of the registrar under this section.





(7) In this section “the appropriate Minister or Ministers” means the Minister orMinisters to whom the report of the Monopolies and Mergers Commission wasmade.

11B Undertaking to take licence of right in infringement proceedings.

(1) If in proceedings for infringement of the right in a registered design in respectof which a licence is available as of right under section 11A of this Act thedefendant undertakes to take a licence on such terms as may be agreed or, indefault of agreement, settled by the registrar under that section—

(a) no injunction shall be granted against him, and(b) the amount recoverable against him by way of damages or on an

account of profits shall not exceed double the amount which wouldhave been payable by him as licensee if such a licence on those termshad been granted before the earliest infringement.


(3) Nothing in this section affects the remedies available in respect of aninfringement committed before licences of right were available.”.


271 Crown use: compensation for loss of profit.

(1) In Schedule 1 to the M59Registered Designs Act 1949 (Crown use), after paragraph 2insert—

“2A (1) Where Crown use is made of a registered design, the governmentdepartment concerned shall pay—

(a) to the registered proprietor, or(b) if there is an exclusive licence in force in respect of the design,

to the exclusive licensee,compensation for any loss resulting from his not being awarded a contractto supply the articles to which the design is applied.

(2) Compensation is payable only to the extent that such a contract could havebeen fulfilled from his existing manufacturing capacity; but is payablenotwithstanding the existence of circumstances rendering him ineligiblefor the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which wouldhave been made on such a contract and to the extent to which anymanufacturing capacity was underused.

(4) No compensation is payable in respect of any failure to secure contractsfor the supply of articles to which the design is applied otherwise than forthe services of the Crown.



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(5) The amount payable under this paragraph shall, if not agreed betweenthe registered proprietor or licensee and the government departmentconcerned with the approval of the Treasury, be determined by the courton a reference under paragraph 3; and it is in addition to any amountpayable under paragraph 1 or 2 of this Schedule.

(6) In this paragraph—“Crown use”, in relation to a design, means the doing of

anything by virtue of paragraph 1 which would otherwise be aninfringement of the right in the design; and

“the government department concerned”, in relation to suchuse, means the government department by whom or on whoseauthority the act was done.”.

(2) In paragraph 3 of that Schedule (reference of disputes as to Crown use), for sub-paragraph (1) substitute—

“(1) Any dispute as to—(a) the exercise by a Government department, or a person authorised

by a Government department, of the powers conferred byparagraph 1 of this Schedule,

(b) terms for the use of a design for the services of the Crown underthat paragraph,

(c) the right of any person to receive any part of a payment made underparagraph 1(3), or

(d) the right of any person to receive a payment under paragraph 2A,may be referred to the court by either party to the dispute.”.

(3) The above amendments apply in relation to any Crown use of a registered design afterthe commencement of this section, even if the terms for such use were settled beforecommencement.


272 Minor and consequential amendments.

The M60Registered Designs Act 1949 is further amended in accordance withSchedule 3 which contains minor amendments and amendments consequential uponthe provisions of this Act.




202 Copyright, Designs and Patents Act 1988 (c. 48)Part V – Patent Agents and Trade Mark Agents




Supplementary

273 Text of Registered Designs Act 1949 as amended.

Schedule 4 contains the text of the Registered Designs Act 1949 as amended.

PART V

PATENT AGENTS AND TRADE MARK AGENTS

Patent agents

274 Persons permitted to carry on business of a patent agent.

(1) Any individual, partnership or body corporate may, subject to the following provisionsof this Part, carry on the business of acting as agent for others for the purpose of—

(a) applying for or obtaining patents, in the United Kingdom or elsewhere, or(b) conducting proceedings before the comptroller relating to applications for, or

otherwise in connection with, patents.

(2) This does not affect any restriction under the European Patent Convention as to whomay act on behalf of another for any purpose relating to European patents.

275 The register of patent agents.

(1) The Secretary of State may make rules requiring the keeping of a register of personswho act as agent for others for the purposes of applying for or obtaining patents; andin this Part a “registered patent agent” means a person whose name is entered in theregister kept under this section.

(2) The rules may contain such provision as the Secretary of State thinks fit regulating theregistration of persons, and may in particular—

(a) require the payment of such fees as may be prescribed, and(b) authorise in prescribed cases the erasure from the register of the name of any

person registered in it, or the suspension of a person’s registration.

(3) The rules may delegate the keeping of the register to another person, and may conferon that person—

(a) power to make regulations—(i) with respect to the payment of fees, in the cases and subject to the

limits prescribed by rules, and(ii) with respect to any other matter which could be regulated by rules,

and(b) such other functions, including disciplinary functions, as may be prescribed

by rules.


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[F93275ARegulation of patent attorneys

(1) The person who keeps the register under section 275 may make regulations whichregulate—

(a) the keeping of the register and the registration of persons;(b) the carrying on of patent attorney work by registered persons.

(2) Those regulations may, amongst other things, make—(a) provision as to the educational and training qualifications, and other

requirements, which must be satisfied before an individual may be registeredor for an individual to remain registered;

(b) provision as to the requirements which must be met by a body (corporateor unincorporate) before it may be registered, or for it to remain registered,including provision as to the management and control of the body;

(c) provision as to the educational, training and other requirements to be met byregulated persons;

(d) provision regulating the practice, conduct and discipline of registeredpersons or regulated persons;

(e) provision authorising in such cases as may be specified in the regulationsthe erasure from the register of the name of any person registered in it, orthe suspension of a person's registration;

(f) provision requiring the payment of such fees as may be specified in ordetermined in accordance with the regulations;

(g) provision about the provision to be made by registered persons in respect ofcomplaints made against them;

(h) provision about the keeping by registered persons or regulated persons ofrecords and accounts;

(i) provision for reviews of or appeals against decisions made under theregulations;

(j) provision as to the indemnification of registered persons or regulated personsagainst losses arising from claims in respect of civil liability incurred bythem.

(3) Regulations under this section may make different provision for different purposes.

(4) Regulations under this section which are not regulatory arrangements within themeaning of the Legal Services Act 2007 are to be treated as such arrangements forthe purposes of that Act.

(5) Before the appointed day, regulations under this section may be made only with theapproval of the Secretary of State.

(6) The powers conferred to make regulations under this section are not to be taken toprejudice—

(a) any other power which the person who keeps the register may have to makerules or regulations (however they may be described and whether they aremade under an enactment or otherwise);

(b) any rules or regulations made by that person under any such power.





(7) In this section—“appointed day” means the day appointed for the coming into force of

paragraph 1 of Schedule 4 to the Legal Services Act 2007;“manager”, in relation to a body, has the same meaning as in the Legal

Services Act 2007 (see section 207);“patent attorney work” means work done in the course of carrying on the

business of acting as agent for others for the purpose of—(a) applying for or obtaining patents, in the United Kingdom or elsewhere,

or(b) conducting proceedings before the comptroller relating to applications

for, or otherwise in connection with, patents;“registered person” means—

(a) a registered patent attorney, or(b) a body (corporate or unincorporate) registered in the register kept under

section 275;“regulated person” means a person who is not a registered person but is a

manager or employee of a body which is a registered person.]

Textual AmendmentsF93 Ss. 275, 275A substituted (1.1.2010) for s. 275 by Legal Services Act 2007 ( c. 29), {ss. 185(3)}, 211

(with ss. 29, 192, 193); S.I. 2009/3250, art. 2(f)(i) (with art. 9)

276 Persons entitled to describe themselves as patent agents.

(1) An individual who is not a registered patent agent shall not—(a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “patent agent" or “patent attorney"; or(b) in the course of a business otherwise describe himself, or permit himself to be

described, as a “patent agent" or “patent attorney".

(2) A partnership shall not—(a) carry on a business under any name or other description which contains the

words “patent agent" or “patent attorney"; or(b) in the course of a business otherwise describe itself, or permit itself to be

described as, a firm of “patent agents" or “patent attorneys",unless all the partners are registered patent agents or the partnership satisfies suchconditions as may be prescribed for the purposes of this section.

(3) A body corporate shall not—(a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “patent agent" or “patent attorney"; or(b) in the course of a business otherwise describe itself, or permit itself to be

described as, a “patent agent" or “patent attorney",unless all the directors of the body corporate are registered patent agents or the bodysatisfies such conditions as may be prescribed for the purposes of this section.

(4) Subsection (3) does not apply to a company which began to carry on business as apatent agent before 17th November 1917 if the name of a director or the manager of




http://www.legislation.gov.uk/id/uksi/2009/3250/article/2/f/i



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the company who is a registered patent agent is mentioned as being so registered inall professional advertisements, circulars or letters issued by or with the company’sconsent on which its name appears.

(5) Where this section would be contravened by the use of the words “patent agent" or“patent attorney" in reference to an individual, partnership or body corporate, it isequally contravened by the use of other expressions in reference to that person, or hisbusiness or place of business, which are likely to be understood as indicating that heis entitled to be described as a “patent agent" or “patent attorney".

(6) A person who contravenes this section commits an offence and is liable on summaryconviction to a fine not exceeding level 5 on the standard scale; and proceedings forsuch an offence may be begun at any time within a year from the date of the offence.

(7) This section has effect subject to—(a) section 277 (persons entitled to describe themselves as European patent

attorneys, &c.), and(b) section 278(1) (use of term “patent attorney" in reference to solicitors).

277 Persons entitled to describe themselves as European patent attorneys, &c.

(1) The term “European patent attorney” or “European patent agent” may be used in thefollowing cases without any contravention of section 276.

(2) An individual who is on the European list may—(a) carry on business under a name or other description which contains the words

“European patent attorney” or “European patent agent”, or(b) otherwise describe himself, or permit himself to be described, as a “European

patent attorney” or “European patent agent”.

(3) A partnership of which not less than the prescribed number or proportion of partnersis on the European list may—

(a) carry on a business under a name or other description which contains thewords “European patent attorneys” or “European patent agents”, or

(b) otherwise describe itself, or permit itself to be described, as a firm whichcarries on the business of a “European patent attorney” or “European patentagent”.

(4) A body corporate of which not less than the prescribed number or proportion ofdirectors is on the European list may—

(a) carry on a business under a name or other description which contains thewords “European patent attorney” or “European patent agent”, or

(b) otherwise describe itself, or permit itself to be described as, a company whichcarries on the business of a “European patent attorney” or “European patentagent”.

(5) Where the term “European patent attorney” or “European patent agent” may, inaccordance with this section, be used in reference to an individual, partnership or bodycorporate, it is equally permissible to use other expressions in reference to that person,or to his business or place of business, which are likely to be understood as indicatingthat he is entitled to be described as a “European patent attorney” or “European patentagent.”





278 Use of the term “patent attorney”: supplementary provisions.

(1) The term “patent attorney” may be used in reference to a solicitor, and a firm ofsolicitors may be described as a firm of “patent attorneys”, without any contraventionof section 276.

(2) No offence is committed under the enactments restricting the use of certainexpressions in reference to persons not qualified to act as solicitors—

(a) by the use of the term “patent attorney” in reference to a registered patentagent, or

(b) by the use of the term “European patent attorney” in reference to a person onthe European list.

(3) The enactments referred to in subsection (2) are section 21 of the M61Solicitors Act1974, section 31 of the M62Solicitors (Scotland) Act 1980 and Article 22 of theM63Solicitors (Northern Ireland) Order 1976.

Modifications etc. (not altering text)C76 S. 278(1) applied (with modifications) (23.12.2011) by The Legal Services Act 2007 (Designation as a

Licensing Authority) (No. 2) Order 2011 (S.I. 2011/2866), arts. 1(2), 8(2)(3), Sch. 3

Marginal CitationsM61 1974 c. 37.M62 1980 c. 46.M63 S.I. 1976/582 (N.I.12).

279 Power to prescribe conditions, &c. for mixed partnerships and bodies corporate.

(1) The Secretary of State may make rules—(a) prescribing the conditions to be satisfied for the purposes of section 276

(persons entitled to describe themselves as patent agents) in relation to apartnership where not all the partners are qualified persons or a body corporatewhere not all the directors are qualified persons, and

(b) imposing requirements to be complied with by such partnerships and bodiescorporate.

(2) The rules may, in particular—(a) prescribe conditions as to the number or proportion of partners or directors

who must be qualified persons;(b) impose requirements as to—

(i) the identification of qualified and unqualified persons in professionaladvertisements, circulars or letters issued by or with the consent of thepartnership or body corporate and which relate to it or to its business;and

(ii) the manner in which a partnership or body corporate is to organiseits affairs so as to secure that qualified persons exercise a sufficientdegree of control over the activities of unqualified persons.

(3) Contravention of a requirement imposed by the rules is an offence for which a personis liable on summary conviction to a fine not exceeding level 5 on the standard scale.











207



(4) The Secretary of State may make rules prescribing for the purposes of section 277the number or proportion of partners of a partnership or directors of a body corporatewho must be qualified persons in order for the partnership or body to take advantageof that section.

(5) In this section “qualified person”—(a) in subsections (1) and (2), means a person who is a registered patent agent, and(b) in subsection (4), means a person who is on the European list.


280 Privilege for communications with patent agents.

(1) This section applies to communications as to any matter relating to the protection ofany invention, design, technical information, trade mark or service mark, or as to anymatter involving passing off.

(2) Any such communication—(a) between a person and his patent agent, or(b) for the purpose of obtaining, or in response to a request for, information which

a person is seeking for the purpose of instructing his patent agent,is privileged from disclosure in legal proceedings in England, Wales or NorthernIreland in the same way as a communication between a person and his solicitor or,as the case may be, a communication for the purpose of obtaining, or in responseto a request for, information which a person seeks for the purpose of instructing hissolicitor.

(3) In subsection (2) “patent agent” means—(a) a registered patent agent or a person who is on the European list,(b) a partnership entitled to describe itself as a firm of patent agents or as a firm

carrying on the business of a European patent attorney, or(c) a body corporate entitled to describe itself as a patent agent or as a company

carrying on the business of a European patent attorney.

(4) It is hereby declared that in Scotland the rules of law which confer privilegefrom disclosure in legal proceedings in respect of communications extend to suchcommunications as are mentioned in this section.

281 Power of comptroller to refuse to deal with certain agents.

(1) This section applies to business under the M64Patents Act 1949, the M65RegisteredDesigns Act 1949 or the M66Patents Act 1977.

(2) The Secretary of State may make rules authorising the comptroller to refuse torecognise as agent in respect of any business to which this section applies—

(a) a person who has been convicted of an offence under section 88 of the PatentsAct 1949, section 114 of the Patents Act 1977 or section 276 of this Act;

(b) an individual whose name has been erased from and not restored to, or whois suspended from, the register of patent agents on the ground of misconduct;

(c) a person who is found by the Secretary of State to have been guilty of suchconduct as would, in the case of an individual registered in the register of





patent agents, render him liable to have his name erased from the register onthe ground of misconduct;

(d) a partnership or body corporate of which one of the partners or directors is aperson whom the comptroller could refuse to recognise under paragraph (a),(b) or (c) above.

(3) The rules may contain such incidental and supplementary provisions as appear to theSecretary of State to be appropriate and may, in particular, prescribe circumstances inwhich a person is or is not to be taken to have been guilty of misconduct.

(4) Rules made under this section shall be made by statutory instrument which shall besubject to annulment in pursuance of a resolution of either House of Parliament.

(5) The comptroller shall refuse to recognise as agent in respect of any business to whichthis section applies a person who neither resides nor has a place of business in theUnited Kingdom, the Isle of Man or another member State of the European EconomicCommunity.

Marginal CitationsM64 1949 c. 88.M65 1949 c. 87.M66 1977 c. 37.

Trade mark agents

282 The register of trade mark agents.

(1) The Secretary of State may make rules requiring the keeping of a register of personswho act as agent for others for the purpose of applying for or obtaining the registrationof trade marks; and in this Part a “registered trade mark agent” means a person whosename is entered in the register kept under this section.

(2) The rules may contain such provision as the Secretary of State thinks fit regulating theregistration of persons, and may in particular—

(a) require the payment of such fees as may be prescribed, and(b) authorise in prescribed cases the erasure from the register of the name of any

person registered in it, or the suspension of a person’s registration.

(3) The rules may delegate the keeping of the register to another person, and may conferon that person—

(a) power to make regulations—(i) with respect to the payment of fees, in the cases and subject to the

limits prescribed by rules, and(ii) with respect to any other matter which could be regulated by rules,

and(b) such other functions, including disciplinary functions, as may be prescribed

by rules.






209



283 Unregistered persons not to be described as registered trade mark agents.

(1) An individual who is not a registered trade mark agent shall not—(a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “registered trade mark agent"; or(b) in the course of a business otherwise describe or hold himself out, or permit

himself to be described or held out, as a registered trade mark agent.

(2) A partnership shall not—(a) carry on a business under any name or other description which contains the

words “registered trade mark agent"; or(b) in the course of a business otherwise describe or hold itself out, or permit itself

to be described or held out, as a firm of registered trade mark agents,unless all the partners are registered trade mark agents or the partnership satisfies suchconditions as may be prescribed for the purposes of this section.

(3) A body corporate shall not—(a) carry on a business (otherwise than in partnership) under any name or other

description which contains the words “registered trade mark agent"; or(b) in the course of a business otherwise describe or hold itself out, or permit itself

to be described or held out, as a registered trade mark agent,unless all the directors of the body corporate are registered trade mark agents or thebody satisfies such conditions as may be prescribed for the purposes of this section.

(4) The Secretary of State may make rules prescribing the conditions to be satisfied forthe purposes of this section in relation to a partnership where not all the partnersare registered trade mark agents or a body corporate where not all the directors areregistered trade mark agents; and the rules may, in particular, prescribe conditions asto the number or proportion of partners or directors who must be registered trade markagents.


(6) A person who contravenes this section commits an offence and is liable on summaryconviction to a fine not exceeding level 5 on the standard scale; and proceedings forsuch an offence may be begun at any time within a year from the date of the offence.

284 Privilege for communications with registered trade mark agents.

(1) This section applies to communications as to any matter relating to the protection ofany design, trade mark or service mark, or as to any matter involving passing off.

(2) Any such communication—(a) between a person and his trade mark agent, or(b) for the purpose of obtaining, or in response to a request for, information which

a person is seeking for the purpose of instructing his trade mark agent,is privileged from disclosure in legal proceedings in England, Wales or NorthernIreland in the same way as a communication between a person and his solicitor or,as the case may be, a communication for the purpose of obtaining, or in responseto a request for, information which a person seeks for the purpose of instructing hissolicitor.





(3) In subsection (1) “trade mark agent” means—(a) a registered trade mark agent, or(b) a partnership entitled to describe itself as a firm of registered trade mark

agents, or(c) a body corporate entitled to describe itself as a registered trade mark agent.

(4) It is hereby declared that in Scotland the rules of law which confer privilegefrom disclosure in legal proceedings in respect of communications extend to suchcommunications as are mentioned in subsection (1).

Supplementary

285 Offences committed by partnerships and bodies corporate.

(1) Proceedings for an offence under this Part alleged to have been committed by apartnership shall be brought in the name of the partnership and not in that of thepartners; but without prejudice to any liability of theirs under subsection (4) below.

(2) The following provisions apply for the purposes of such proceedings as in relation toa body corporate—

(a) any rules of court relating to the service of documents;(b) in England, Wales or Northern Ireland, Schedule 3 to the M67Magistrates’

Courts Act 1980 or Schedule 4 to the M68Magistrates’ Courts (NorthernIreland) Order 1981 (procedure on charge of offence).

(3) A fine imposed on a partnership on its conviction in such proceedings shall be paidout of the partnership assets.

(4) Where a partnership is guilty of an offence under this Part, every partner, other thana partner who is proved to have been ignorant of or to have attempted to prevent thecommission of the offence, is also guilty of the offence and liable to be proceededagainst and punished accordingly.

(5) Where an offence under this Part committed by a body corporate is proved to havebeen committed with the consent or connivance of a director, manager, secretary orother similar officer of the body, or a person purporting to act in any such capacity,he as well as the body corporate is guilty of the offence and liable to be proceededagainst and punished accordingly.

Marginal CitationsM67 1980 c. 43.M68 S.I. 1981/1675 (N.I. 26).

286 Interpretation.

In this Part—“the comptroller” means the Comptroller-General of Patents, Designs and

Trade Marks;“director”, in relation to a body corporate whose affairs are managed by its

members, means any member of the body corporate;



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“the European list” means the list of professional representatives maintainedby the European Patent Office in pursuance of the European Patent Convention;

“registered patent agent” has the meaning given by section 275(1);“registered trade mark agent” has the meaning given by section 282(1).

PART VI

PATENTS

Patents county courts

287 Patents county courts: special jurisdiction.

(1) The Lord Chancellor may by order made by statutory instrument designate any countycourt as a patents county court and confer on it jurisdiction (its “special jurisdiction")to hear and determine such descriptions of proceedings—

(a) relating to patents or designs, or(b) ancillary to, or arising out of the same subject matter as, proceedings relating

to patents or designs,as may be specified in the order.

(2) The special jurisdiction of a patents county court is exercisable throughout Englandand Wales, but rules of court may provide for a matter pending in one such court tobe heard and determined in another or partly in that and partly in another.

(3) A patents county court may entertain proceedings within its special jurisdictionnotwithstanding that no pecuniary remedy is sought.

(4) An order under this section providing for the discontinuance of any of the specialjurisdiction of a patents county court may make provision as to proceedings pendingin the court when the order comes into operation.

(5) Nothing in this section shall be construed as affecting the ordinary jurisdiction of acounty court.

Modifications etc. (not altering text)C77 S. 287 applied (1.7.1999) by S.I. 1999/1618, reg. 7(6)(a)

288 Financial limits in relation to proceedings within special jurisdiction of patentscounty court.

(1) Her Majesty may by Order in Council provide for limits of amount or value in relationto any description of proceedings within the special jurisdiction of a patents countycourt.

(2) If a limit is imposed on the amount of a claim of any description and the plaintiff has acause of action for more than that amount, he may abandon the excess; in which casea patents county court shall have jurisdiction to hear and determine the action, but theplaintiff may not recover more than that amount.



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212 Copyright, Designs and Patents Act 1988 (c. 48)Part VI – Patents




(3) Where the court has jurisdiction to hear and determine an action by virtue ofsubsection (2), the judgment of the court in the action is in full discharge of all demandsin respect of the cause of action, and entry of the judgment shall be made accordingly.

(4) If the parties agree, by a memorandum signed by them or by their respectivesolicitors or other agents, that a patents county court shall have jurisdiction in anyproceedings, that court shall have jurisdiction to hear and determine the proceedingsnotwithstanding any limit imposed under this section.

(5) No recommendation shall be made to Her Majesty to make an Order under this sectionunless a draft of the Order has been laid before and approved by a resolution of eachHouse of Parliament.

289 Transfer of proceedings between High Court and patents county court.

(1) No order shall be made under section 41 of the M69County Courts Act 1984 (power ofHigh Court to order proceedings to be transferred from the county court) in respect ofproceedings within the special jurisdiction of a patents county court.

(2) In considering in relation to proceedings within the special jurisdiction of a patentscounty court whether an order should be made under section 40 or 42 of the CountyCourts Act 1984 (transfer of proceedings from or to the High Court), the court shallhave regard to the financial position of the parties and may order the transfer of theproceedings to a patents county court or, as the case may be, refrain from orderingtheir transfer to the High Court notwithstanding that the proceedings are likely to raisean important question of fact or law.


[F94290 Limitation of costs where pecuniary claim could have been brought in patentscounty court.

(1) Where an action is commenced in the High Court which could have been commencedin a patents county court and in which a claim for a pecuniary remedy is made, then,subject to the provisions of this section, if the plaintiff recovers less than the prescribedamount, he is not entitled to recover any more costs than those to which he would havebeen entitled if the action had been brought in the county court.

(2) For this purpose a plaintiff shall be treated as recovering the full amount recoverablein respect of his claim without regard to any deduction made in respect of matters notfalling to be taken into account in determining whether the action could have beencommenced in a patents county court.

(3) This section does not affect any question as to costs if it appears to the High Court thatthere was reasonable ground for supposing the amount recoverable in respect of theplaintiff’s claim to be in excess of the prescribed amount.

(4) The High Court, if satisfied that there was sufficient reason for bringing the action inthe High Court, may make an order allowing the costs or any part of the costs on theHigh Court scale or on such one of the county court scales as it may direct.



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(5) This section does not apply to proceedings brought by the Crown.

(6) In this section “the prescribed amount” means such amount as may be prescribed byHer Majesty for the purposes of this section by Order in Council.

(7) No recommendation shall be made to Her Majesty to make an Order under this sectionunless a draft of the Order has been laid before and approved by a resolution of eachHouse of Parliament.]

Textual AmendmentsF94 S. 290 repealed (prosp.) by Courts and Legal Services Act 1990 (c. 41, SIF 37), ss. 124(3), 125(7),

Sch. 20

291 Proceedings in patents county court.

(1) Where a county court is designated a patents county court, the Lord Chancellor shallnominate a person entitled to sit as a judge of that court as the patents judge.

(2) County court rules shall make provision for securing that, so far as is practicable andappropriate—

(a) proceedings within the special jurisdiction of a patents county court are dealtwith by the patents judge, and

(b) the judge, rather than a registrar or other officer of the court, deals withinterlocutory matters in the proceedings.

(3) County court rules shall make provision empowering a patents county court inproceedings within its special jurisdiction, on or without the application of any party—

(a) to appoint scientific advisers or assessors to assist the court, or(b) to order the Patent Office to inquire into and report on any question of fact

or opinion.

(4) Where the court exercises either of those powers on the application of a party, theremuneration or fees payable to the Patent Office shall be at such rate as may bedetermined in accordance with county court rules and shall be costs of the proceedingsunless otherwise ordered by the judge.

(5) Where the court exercises either of those powers of its own motion, the remunerationor fees payable to the Patent Office shall be at such rate as may be determined by theLord Chancellor with the approval of the Treasury and shall be paid out of moneyprovided by Parliament.

292 Rights and duties of registered patent agents in relation to proceedings in patentscounty court.

(1) A registered patent agent may do, in or in connection with proceedings in a patentscounty court which are within the special jurisdiction of that court, anything which asolicitor of the Supreme Court might do, other than prepare a deed.

(2) The Lord Chancellor may by regulations provide that the right conferred bysubsection (1) shall be subject to such conditions and restrictions as appear to the LordChancellor to be necessary or expedient; and different provision may be made fordifferent descriptions of proceedings.






214 Copyright, Designs and Patents Act 1988 (c. 48)Part VI – Patents




(3) A patents county court has the same power to enforce an undertaking given by aregistered patent agent acting in pursuance of this section as it has, by virtue ofsection 142 of the M70County Courts Act 1984, in relation to a solicitor.

(4) Nothing in section 143 of the County Courts Act 1984 (prohibition on persons otherthan solicitors receiving remuneration) applies to a registered patent agent acting inpursuance of this section.

(5) The provisions of county court rules prescribing scales of costs to be paid to solicitorsapply in relation to registered patent agents acting in pursuance of this section.



Licences of right in respect of certain patents

293 Restriction of acts authorised by certain licences.

In paragraph 4(2)(c) of Schedule 1 to the M71Patents Act 1977 (licences to be availableas of right where term of existing patent extended), at the end insert “, but subject toparagraph 4A below”, and after that paragraph insert—

“4A (1) If the proprietor of a patent for an invention which is a product files adeclaration with the Patent Office in accordance with this paragraph, thelicences to which persons are entitled by virtue of paragraph 4(2)(c) aboveshall not extend to a use of the product which is excepted by or under thisparagraph.

(2) Pharmaceutical use is excepted, that is—(a) use as a medicinal product within the meaning of the Medicines

Act 1968, and(b) the doing of any other act mentioned in section 60(1)(a) above with

a view to such use.

(3) The Secretary of State may by order except such other uses as he thinksfit; and an order may—

(a) specify as an excepted use any act mentioned in section 60(1)(a)above, and

(b) make different provision with respect to acts done in differentcircumstances or for different purposes.

(4) For the purposes of this paragraph the question what uses are excepted, sofar as that depends on—

(a) orders under section 130 of the Medicines Act 1968 (meaning of“medicinal product”), or

(b) orders under sub-paragraph (3) above,



215



shall be determined in relation to a patent at the beginning of the sixteenthyear of the patent.

(5) A declaration under this paragraph shall be in the prescribed form and shallbe filed in the prescribed manner and within the prescribed time limits.

(6) A declaration may not be filed—(a) in respect of a patent which has at the commencement of

section 293 of the Copyright, Designs and Patents Act 1988 passedthe end of its fifteenth year; or

(b) if at the date of filing there is—(i) an existing licence for any description of excepted use of

the product, or(ii) an outstanding application under section 46(3)(a) or (b)

above for the settlement by the comptroller of the termsof a licence for any description of excepted use of theproduct,

and, in either case, the licence took or is to take effect at or afterthe end of the sixteenth year of the patent.

(7) Where a declaration has been filed under this paragraph in respect of apatent—

(a) section 46(3)(c) above (restriction of remedies for infringementwhere licences available as of right) does not apply to aninfringement of the patent in so far as it consists of the excepteduse of the product after the filing of the declaration; and

(b) section 46(3)(d) above (abatement of renewal fee if licencesavailable as of right) does not apply to the patent.”.


294 When application may be made for settlement of terms of licence.

In Schedule 1 to the M72Patents Act 1977, after the paragraph inserted by section 293above, insert—

“4B (1) An application under section 46(3)(a) or (b) above for the settlement by thecomptroller of the terms on which a person is entitled to a licence by virtueof paragraph 4(2)(c) above is ineffective if made before the beginning ofthe sixteenth year of the patent.

(2) This paragraph applies to applications made after the commencement ofsection 294 of the Copyright, Designs and Patents Act 1988 and to anyapplication made before the commencement of that section in respect of apatent which has not at the commencement of that section passed the endof its fifteenth year.”.


216 Copyright, Designs and Patents Act 1988 (c. 48)Part VII – Miscellaneous and General





Patents: miscellaneous amendments

295 Patents: miscellaneous amendments.

The M73Patents Act 1949 and the M74Patents Act 1977 are amended in accordance withSchedule 5.


PART VII


Devices designed to circumvent copy-protection

296 Devices designed to circumvent copy-protection.

(1) This section applies where copies of a copyright work are issued to the public, by orwith the licence of the copyright owner, in an electronic form which is copy-protected.

(2) The person issuing the copies to the public has the same rights against a person who,knowing or having reason to believe that it will be used to make infringing copies—

(a) makes, imports, sells or lets for hire, offers or exposes for sale or hire, oradvertises for sale or hire, any device or means specifically designed oradapted to circumvent the form of copy-protection employed, or

(b) publishes information intended to enable or assist persons to circumvent thatform of copy-protection,

as a copyright owner has in respect of an infringement of copyright.

(3) Further, he has the same rights under section 99 or 100 (delivery up or seizure of certainarticles) in relation to any such device or means which a person has in his possession,custody or control with the intention that it should be used to make infringing copiesof copyright works, as a copyright owner has in relation to an infringing copy.

(4) References in this section to copy-protection include any device or means intended toprevent or restrict copying of a work or to impair the quality of copies made.

(5) Expressions used in this section which are defined for the purposes of Part I of thisAct (copyright) have the same meaning as in that Part.

(6) The following provisions apply in relation to proceedings under this section as inrelation to proceedings under Part I (copyright)—




Copyright, Designs and Patents Act 1988 (c. 48)Part VII – Miscellaneous and GeneralChapter V – Miscellaneous and GeneralDocument Generated: 2020-11-25

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(a) sections 104 to 106 of this Act (presumptions as to certain matters relatingto copyright), and

(b) section 72 of the M75Supreme Court Act 1981, section 15 of the M76LawReform (Miscellaneous Provisions) (Scotland) Act 1985 and section 94A ofthe M77Judicature (Northern Ireland) Act 1978 (withdrawal of privilege againstself-incrimination in certain proceedings relating to intellectual property);

and section 114 of this Act applies, with the necessary modifications, in relation to thedisposal of anything delivered up or seized by virtue of subsection (3) above.



[F95296ZACircumvention of technological measures

(1) This section applies where—(a) effective technological measures have been applied to a copyright work other

than a computer program; and(b) a person (B) does anything which circumvents those measures knowing, or

with reasonable grounds to know, that he is pursuing that objective.

(2) This section does not apply where a person, for the purposes of research intocryptography, does anything which circumvents effective technological measuresunless in so doing, or in issuing information derived from that research, he affectsprejudicially the rights of the copyright owner.

(3) The following persons have the same rights against B as a copyright owner has inrespect of an infringement of copyright—

(a) a person—(i) issuing to the public copies of, or

(ii) communicating to the public,the work to which effective technological measures have been applied; and

(b) the copyright owner or his exclusive licensee, if he is not the person specifiedin paragraph (a).

(4) The rights conferred by subsection (3) are concurrent, and sections 101(3) and 102(1)to (4) apply, in proceedings under this section, in relation to persons with concurrentrights as they apply, in proceedings mentioned in those provisions, in relation to acopyright owner and exclusive licensee with concurrent rights.

(5) The following provisions apply in relation to proceedings under this section as inrelation to proceedings under Part 1 (copyright)—

(a) sections 104 to 106 of this Act (presumptions as to certain matters relatingto copyright); and

(b) section 72 of the Supreme Court Act 1981, section 15 of the Law Reform(Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the








Judicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property).

(6) Subsections (1) to (4) and (5)(b) and any other provision of this Act as it has effectfor the purposes of those subsections apply, with any necessary adaptations, to rightsin performances, publication right and database right.

(7) The provisions of regulation 22 (presumptions relevant to database right) of theCopyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply inproceedings brought by virtue of this section in relation to database right.]

Textual AmendmentsF95 Ss. 296-296ZF and cross-heading substituted (31.10.2003) for s. 296 and cross-heading by The

Copyright and Related Rights Regulations 2003 (S.I. 2003/2498), reg. 24(1) (with regs. 31-40)


[F95296ZBDevices and services designed to circumvent technological measures

(1) A person commits an offence if he—(a) manufactures for sale or hire, or(b) imports otherwise than for his private and domestic use, or(c) in the course of a business—


(iii) advertises for sale or hire, or(iv) possesses, or(v) distributes, or

(d) distributes otherwise than in the course of a business to such an extent as toaffect prejudicially the copyright owner,

any device, product or component which is primarily designed, produced, oradapted for the purpose of enabling or facilitating the circumvention of effectivetechnological measures.

(2) A person commits an offence if he provides, promotes, advertises or markets—(a) in the course of a business, or(b) otherwise than in the course of a business to such an extent as to affect

prejudicially the copyright owner,a service the purpose of which is to enable or facilitate the circumvention of effectivetechnological measures.

(3) Subsections (1) and (2) do not make unlawful anything done by, or on behalf of, lawenforcement agencies or any of the intelligence services—

(a) in the interests of national security; or(b) for the purpose of the prevention or detection of crime, the investigation of

an offence, or the conduct of a prosecution,and in this subsection “intelligence services” has the meaning given in section 81 ofthe Regulation of Investigatory Powers Act 2000.






219



(4) A person guilty of an offence under subsection (1) or (2) is liable—(a) on summary conviction, to imprisonment for a term not exceeding three

months, or to a fine not exceeding the statutory maximum, or both;(b) on conviction on indictment to a fine or imprisonment for a term not

exceeding two years, or both.

(5) It is a defence to any prosecution for an offence under this section for the defendantto prove that he did not know, and had no reasonable ground for believing, that—

(a) the device, product or component; or(b) the service,

enabled or facilitated the circumvention of effective technological measures.




296ZC Devices and services designed to circumvent technological measures: searchwarrants and forfeiture

(1) The provisions of sections 297B (search warrants), 297C (forfeiture of unauthoriseddecoders: England and Wales or Northern Ireland) and 297D (forfeiture ofunauthorised decoders: Scotland) apply to offences under section 296ZB with thefollowing modifications.

(2) In section 297B the reference to an offence under section 297A(1) shall be construedas a reference to an offence under section 296ZB(1) or (2).

(3) In sections 297C(2)(a) and 297D(15) the references to an offence undersection 297A(1) shall be construed as a reference to an offence undersection 296ZB(1).

(4) In sections 297C and 297D references to unauthorised decoders shall be construedas references to devices, products or components for the purpose of circumventingeffective technological measures.
















[F95296ZDRights and remedies in respect of devices and services designed to circumventtechnological measures

(1) This section applies where—(a) effective technological measures have been applied to a copyright work other

than a computer program; and(b) a person (C) manufactures, imports, distributes, sells or lets for hire, offers

or exposes for sale or hire, advertises for sale or hire, or has in his possessionfor commercial purposes any device, product or component, or providesservices which—

(i) are promoted, advertised or marketed for the purpose of thecircumvention of, or

(ii) have only a limited commercially significant purpose or use otherthan to circumvent, or

(iii) are primarily designed, produced, adapted or performed for thepurpose of enabling or facilitating the circumvention of,

those measures.

(2) The following persons have the same rights against C as a copyright owner has inrespect of an infringement of copyright—

(a) a person—(i) issuing to the public copies of, or

(ii) communicating to the public,the work to which effective technological measures have been applied;

(b) the copyright owner or his exclusive licensee, if he is not the person specifiedin paragraph (a); and

(c) the owner or exclusive licensee of any intellectual property right in theeffective technological measures applied to the work.

(3) The rights conferred by subsection (2) are concurrent, and sections 101(3) and 102(1)to (4) apply, in proceedings under this section, in relation to persons with concurrentrights as they apply, in proceedings mentioned in those provisions, in relation to acopyright owner and exclusive licensee with concurrent rights.

(4) Further, the persons in subsection (2) have the same rights under section 99 or 100(delivery up or seizure of certain articles) in relation to any such device, product orcomponent which a person has in his possession, custody or control with the intentionthat it should be used to circumvent effective technological measures, as a copyrightowner has in relation to any infringing copy.

(5) The rights conferred by subsection (4) are concurrent, and section 102(5) shall apply,as respects anything done under section 99 or 100 by virtue of subsection (4), inrelation to persons with concurrent rights as it applies, as respects anything doneunder section 99 or 100, in relation to a copyright owner and exclusive licensee withconcurrent rights.



221




(b) section 72 of the Supreme Court Act 1981, section 15 of the Law Reform(Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of theJudicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property);

and section 114 of this Act applies, with the necessary modifications, in relation tothe disposal of anything delivered up or seized by virtue of subsection (4).

(7) In section 97(1) (innocent infringement of copyright) as it applies to proceedings forinfringement of the rights conferred by this section, the reference to the defendantnot knowing or having reason to believe that copyright subsisted in the work shallbe construed as a reference to his not knowing or having reason to believe that hisacts enabled or facilitated an infringement of copyright.

(8) Subsections (1) to (5), (6)(b) and (7) and any other provision of this Act as it haseffect for the purposes of those subsections apply, with any necessary adaptations,to rights in performances, publication right and database right.

(9) The provisions of regulation 22 (presumptions relevant to database right) of theCopyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply inproceedings brought by virtue of this section in relation to database right.]




296ZE Remedy where effective technological measures prevent permitted acts

(1) In this section—“permitted act” means an act which may be done in relation to copyright

works, notwithstanding the subsistence of copyright, by virtue of a provisionof this Act listed in Part 1 of Schedule 5A;

“voluntary measure or agreement” means—(a) any measure taken voluntarily by a copyright owner, his exclusive

licensee or a person issuing copies of, or communicating to the public,a work other than a computer program, or

(b) any agreement between a copyright owner, his exclusive licensee or aperson issuing copies of, or communicating to the public, a work otherthan a computer program and another party,

the effect of which is to enable a person to carry out a permitted act.

(2) Where the application of any effective technological measure to a copyright workother than a computer program prevents a person from carrying out a permitted act inrelation to that work then that person or a person being a representative of a class ofpersons prevented from carrying out a permitted act may issue a notice of complaintto the Secretary of State.









(3) Following receipt of a notice of complaint, the Secretary of State may give to theowner of that copyright work or an exclusive licensee such directions as appear tothe Secretary of State to be requisite or expedient for the purpose of—

(a) establishing whether any voluntary measure or agreement relevant to thecopyright work the subject of the complaint subsists; or

(b) (where it is established there is no subsisting voluntary measure oragreement) ensuring that the owner or exclusive licensee of that copyrightwork makes available to the complainant the means of carrying out thepermitted act the subject of the complaint to the extent necessary to so benefitfrom that permitted act.

(4) The Secretary of State may also give directions—(a) as to the form and manner in which a notice of complaint in subsection (2)

may be delivered to him;(b) as to the form and manner in which evidence of any voluntary measure or

agreement may be delivered to him; and(c) generally as to the procedure to be followed in relation to a complaint made

under this section;and shall publish directions given under this subsection in such manner as in hisopinion will secure adequate publicity for them.

(5) It shall be the duty of any person to whom a direction is given under subsection (3)(a) or (b) to give effect to that direction.

(6) The obligation to comply with a direction given under subsection (3)(b) is a dutyowed to the complainant or, where the complaint is made by a representative of aclass of persons, to that representative and to each person in the class represented;and a breach of the duty is actionable accordingly (subject to the defences and otherincidents applying to actions for breach of statutory duty).

(7) Any direction under this section may be varied or revoked by a subsequent directionunder this section.

(8) Any direction given under this section shall be in writing.

(9) This section does not apply to copyright works made available to the public on agreedcontractual terms in such a way that members of the public may access them from aplace and at a time individually chosen by them.

(10) This section applies only where a complainant has lawful access to the protectedcopyright work, or where the complainant is a representative of a class of persons,where the class of persons have lawful access to the work.

(11) Subsections (1) to (10) apply with any necessary adaptations to—(a) rights in performances, and in this context the expression “permitted act”

refers to an act that may be done by virtue of a provision of this Act listedin Part 2 of Schedule 5A;

(b) database right, and in this context the expression “permitted act” refers toan act that may be done by virtue of a provision of this Act listed in Part 3of Schedule 5A; and

(c) publication right.


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296ZF Interpretation of sections 296ZA to 296ZE

(1) In sections 296ZA to 296ZE, “technological measures” are any technology, deviceor component which is designed, in the normal course of its operation, to protect acopyright work other than a computer program.

(2) Such measures are “effective” if the use of the work is controlled by the copyrightowner through—

(a) an access control or protection process such as encryption, scrambling orother transformation of the work, or

(b) a copy control mechanism,which achieves the intended protection.

(3) In this section, the reference to—(a) protection of a work is to the prevention or restriction of acts that are

not authorised by the copyright owner of that work and are restricted bycopyright; and

(b) use of a work does not extend to any use of the work that is outside the scopeof the acts restricted by copyright.

(4) Expressions used in sections 296ZA to 296ZE which are defined for the purposes ofPart 1 of this Act (copyright) have the same meaning as in that Part.]




[F96Rights management information]

Textual AmendmentsF96 S. 296ZG and cross-heading inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 25 (with regs. 31-40)









http://www.legislation.gov.uk/id/ukpga/1988/48/section/296ZG









296ZG Electronic rights management information

(1) This section applies where a person (D), knowingly and without authority, removesor alters electronic rights management information which—

(a) is associated with a copy of a copyright work, or(b) appears in connection with the communication to the public of a copyright

work, andwhere D knows, or has reason to believe, that by so doing he is inducing, enabling,facilitating or concealing an infringement of copyright.

(2) This section also applies where a person (E), knowingly and without authority,distributes, imports for distribution or communicates to the public copies of acopyright work from which electronic rights management information—

(a) associated with the copies, or(b) appearing in connection with the communication to the public of the work,

has been removed or altered without authority and where E knows, or has reasonto believe, that by so doing he is inducing, enabling, facilitating or concealing aninfringement of copyright.

(3) A person issuing to the public copies of, or communicating, the work to the public,has the same rights against D and E as a copyright owner has in respect of aninfringement of copyright.

(4) The copyright owner or his exclusive licensee, if he is not the person issuing to thepublic copies of, or communicating, the work to the public, also has the same rightsagainst D and E as he has in respect of an infringement of copyright.

(5) The rights conferred by subsections (3) and (4) are concurrent, and sections 101(3)and 102(1) to (4) apply, in proceedings under this section, in relation to persons withconcurrent rights as they apply, in proceedings mentioned in those provisions, inrelation to a copyright owner and exclusive licensee with concurrent rights.



(b) section 72 of the Supreme Court Act 1981, section 15 of the Law Reform(Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of theJudicature (Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination in certain proceedings relating to intellectual property).

(7) In this section—(a) expressions which are defined for the purposes of Part 1 of this Act

(copyright) have the same meaning as in that Part; and(b) “rights management information” means any information provided by the

copyright owner or the holder of any right under copyright which identifiesthe work, the author, the copyright owner or the holder of any intellectualproperty rights, or information about the terms and conditions of use of thework, and any numbers or codes that represent such information.

(8) Subsections (1) to (5) and (6)(b), and any other provision of this Act as it has effectfor the purposes of those subsections, apply, with any necessary adaptations, to rightsin performances, publication right and database right.


225



(9) The provisions of regulation 22 (presumptions relevant to database right) of theCopyright and Rights in Databases Regulations 1997 (SI 1997/3032) apply inproceedings brought by virtue of this section in relation to database right.


[F97Computer programs]

Textual AmendmentsF97 Cross heading and s. 296A inserted (1.1.1993) by S.I. 1992/3233, reg.11

F98296AAvoidance of certain terms.

(1) Where a person has the use of a computer program under an agreement, any term orcondition in the agreement shall be void in so far as it purports to prohibit or restrict—

(a) the making of any back up copy of the program which it is necessary for himto have for the purposes of the agreed use;

(b) where the conditions in section 50B(2) are met, the decompiling of theprogram; or

(c) the use of any device or means to observe, study or test the functioning ofthe program in order to understand the ideas and principles which underlieany element of the program.

(2) In this section, decompile, in relation to a computer program, has the same meaningas in section 50B

Textual AmendmentsF98 S. 296A inserted (1.1.1993) by S.I. 1992/3233, reg.11.


[F99Databases]

Textual AmendmentsF99 S. 296B and crossheading inserted (1.1.1998) by S.I. 1997/3032, reg. 10 (with Pt. IV)

296B [F100 Avoidance of certain terms relating to databases]

Where under an agreement a person has a right to use a database or part of adatabase, any term or condition in the agreement shall be void in so far as it purportsto prohibit or restrict the performance of any act which would but for section 50Dinfringe the copyright in the database.














Textual AmendmentsF100 S. 296B inserted (1.1.1998) by S.I. 1997/3032, reg. 10 (with Pt. IV)

Fraudulent reception of transmissions

297 Offence of fraudulently receiving programmes.

(1) A person who dishonestly receives a programme included in a broadcasting or cableprogramme service provided from a place in the United Kingdom with intent to avoidpayment of any charge applicable to the reception of the programme commits anoffence and is liable on summary conviction to a fine not exceeding level 5 on thestandard scale.

(2) Where an offence under this section committed by a body corporate is proved to havebeen committed with the consent or connivance of a director, manager, secretary orother similar officer of the body, or a person purporting to act in any such capacity,he as well as the body corporate is guilty of the offence and liable to be proceededagainst and punished accordingly.

In relation to a body corporate whose affairs are managed by its members “director”means a member of the body corporate.

[F101297AUnauthorised decoders.

(1) A person who makes, imports, sells or lets for hire any unauthorised decoder shall beguilty of an offence and liable on summary conviction to a fine not exceeding level5 on the standard scale.

(2) It is a defence to any prosecution for an offence under this section for the defendantto prove that he did not know, and had no reasonable ground for knowing, that thedecoder was an unauthorised decoder.

(3) In this section—“apparatus” includes any device, component or electronic data;“decoder” means any apparatus which is designed or adapted to enable

(whether on its own or with any other apparatus) an encrypted transmissionto be decoded;

“transmission” means any programme included in a broadcasting or cableprogramme service which is provided from a place in the United Kingdom;and

“unauthorised” in relation to a decoder, means a decoder which will enableencrypted transmissions to be viewed in decoded form without payment ofthe fee (however imposed) which the person making the transmission, or onwhose behalf it is made, charges for viewing those transmissions, or viewingany service of which they form part.]

Textual AmendmentsF101 S. 297A inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 179(1)









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[F102297BSearch warrants


(a) that an offence under section 297A(1) has been or is about to be committedin any premises, and

(b) that evidence that such an offence has been or is about to be committed isin those premises,


(2) The power conferred by subsection (1) does not, in England and Wales, extend toauthorising a search for material of the kinds mentioned in section 9(2) of the Policeand Criminal Evidence Act 1984 (c. 60) (certain classes of personal or confidentialmaterial).

(3) A warrant under subsection (1)—(a) may authorise persons to accompany any constable executing the warrant,

and(b) remains in force for 28 days from the date of its issue.

(4) In executing a warrant issued under subsection (1) a constable may seize an articleif he reasonably believes that it is evidence that any offence under section 297A(1)has been or is about to be committed.

(5) In this section “premises” includes land, buildings, fixed or moveable structures,vehicles, vessels, aircraft and hovercraft.]

Textual AmendmentsF102 S. 297B inserted (20.11.2002) by 2002 c. 25, s. 2(4); S.I. 2002/2749, art. 2


[F103297CForfeiture of unauthorised decoders: England and Wales or Northern Ireland

(1) In England and Wales or Northern Ireland where unauthorised decoders have comeinto the possession of any person in connection with the investigation or prosecutionof a relevant offence, that person may apply under this section for an order for theforfeiture of the unauthorised decoders.

(2) For the purposes of this section “relevant offence” means—(a) an offence under section 297A(1) (criminal liability for making, importing,

etc. unauthorised decoders),(b) an offence under the Trade Descriptions Act 1968, or(c) an offence involving dishonesty or deception.











relating to some or all of the unauthorised decoders, to that court, or(b) where no application for the forfeiture of the unauthorised decoders has been

made under paragraph (a), by way of complaint to a magistrates’ court.

(4) On an application under this section, the court shall make an order for the forfeitureof any unauthorised decoders only if it is satisfied that a relevant offence has beencommitted in relation to the unauthorised decoders.

(5) A court may infer for the purposes of this section that such an offence has beencommitted in relation to any unauthorised decoders if it is satisfied that suchan offence has been committed in relation to unauthorised decoders which arerepresentative of the unauthorised decoders in question (whether by reason of beingof the same design or part of the same consignment or batch or otherwise).




(8) Subject to subsection (9), where any unauthorised decoders are forfeited under thissection they shall be destroyed in accordance with such directions as the court maygive.

(9) On making an order under this section the court may direct that the unauthoriseddecoders to which the order relates shall (instead of being destroyed) be forfeited toa person who has rights or remedies under section 298 in relation to the unauthoriseddecoders in question, or dealt with in such other way as the court considersappropriate.]

Textual AmendmentsF103 Ss. 297C, 297D inserted (20.11.2002) by 2002 c. 25, s. 5; S.I. 2002/2749, art. 2


F104297DForfeiture of unauthorised decoders: Scotland

(1) In Scotland the court may make an order under this section for the forfeiture ofunauthorised decoders.

(2) An order under this section may be made—






229



(a) on an application by the procurator-fiscal made in the manner specified insection 134 of the Criminal Procedure (Scotland) Act 1995 (c. 46), or

(b) where a person is convicted of a relevant offence, in addition to any otherpenalty which the court may impose.

(3) On an application under subsection (2)(a), the court shall make an order for theforfeiture of any unauthorised decoders only if it is satisfied that a relevant offencehas been committed in relation to the unauthorised decoders.

(4) The court may infer for the purposes of this section that such an offence hasbeen committed in relation to any unauthorised decoders if it is satisfied that suchan offence has been committed in relation to unauthorised decoders which arerepresentative of the unauthorised decoders in question (whether by reason of beingof the same design or part of the same consignment or batch or otherwise).

(5) The procurator-fiscal making the application under subsection (2)(a) shall serve onany person appearing to him to be the owner of, or otherwise to have an interest in,the unauthorised decoders to which the application relates a copy of the application,together with a notice giving him the opportunity to appear at the hearing of theapplication to show cause why the unauthorised decoders should not be forfeited.

(6) Service under subsection (5) shall be carried out, and such service may be proved,in the manner specified for citation of an accused in summary proceedings under theCriminal Procedure (Scotland) Act 1995 (c. 46).

(7) Any person upon whom notice is served under subsection (5) and any other personclaiming to be the owner of, or otherwise to have an interest in, unauthorised decodersto which an application under this section relates shall be entitled to appear at thehearing of the application to show cause why the unauthorised decoders should notbe forfeited.




(9) Where an order for the forfeiture of any unauthorised decoders is made followingan application under subsection (2)(a), any person who appeared, or was entitledto appear, to show cause why the unauthorised decoders should not be forfeitedmay, within 21 days of the making of the order, appeal to the High Court by Billof Suspension.

(10) Section 182(5)(a) to (e) of the Criminal Procedure (Scotland) Act 1995 shall apply toan appeal under subsection (9) as it applies to a stated case under Part 2 of that Act.





brought under the Criminal Procedure (Scotland) Act 1995 (c. 46), or





(b) if an appeal is made within that period, until the appeal is determined orabandoned.

(13) Subject to subsection (14), where any unauthorised decoders are forfeited under thissection they shall be destroyed in accordance with such directions as the court maygive.

(14) On making an order under this section the court may direct that the unauthoriseddecoders to which the order relates shall (instead of being destroyed) be forfeited toa person who has rights or remedies under section 298 in relation to the unauthoriseddecoders in question, or dealt with in such other way as the court considersappropriate.

(15) For the purposes of this section—“relevant offence” means an offence under section 297A(1) (criminal

liability for making, importing, etc. unauthorised decoders), or under theTrade Descriptions Act 1968 (c. 29) or any offence involving dishonesty ordeception;




Textual AmendmentsF104 Ss. 297C, 297D inserted (20.11.2002) by 2002 c. 25, s. 5; S.I. 2002/2749, art. 2

298 Rights and remedies in respect of apparatus, &c. for unauthorised reception oftransmissions.

(1) A person who—(a) makes charges for the reception of programmes included in a broadcasting or

cable programme service provided from a place in the United Kingdom, or(b) sends encrypted transmissions of any other description from a place in the

United Kingdom,is entitled to the following rights and remedies.

(2) He has the same rights and remedies against a person who—(a) makes, imports or sells or lets for hire any apparatus or device designed

or adapted to enable or assist persons to receive the programmes or othertransmissions when they are not entitled to do so, or

(b) publishes any information which is calculated to enable or assist persons toreceive the programmes or other transmissions when they are not entitled todo so,

as a copyright owner has in respect of an infringement of copyright.

(3) Further, he has the same rights under section 99 or 100 (delivery up or seizure ofcertain articles) in relation to any such apparatus or device as a copyright owner hasin relation to an infringing copy.






231



(4) Section 72 of the M78Supreme Court Act 1981, section 15 of the M79Law Reform(Miscellaneous Provisions) (Scotland) Act 1985 and section 94A of the M80Judicature(Northern Ireland) Act 1978 (withdrawal of privilege against self-incrimination incertain proceedings relating to intellectual property) apply to proceedings under thissection as to proceedings under Part I of this Act (copyright).

(5) In section 97(1) (innocent infringement of copyright) as it applies to proceedings forinfringement of the rights conferred by this section, the reference to the defendantnot knowing or having reason to believe that copyright subsisted in the work shall beconstrued as a reference to his not knowing or having reason to believe that his actsinfringed the rights conferred by this section.

(6) Section 114 of this Act applies, with the necessary modifications, in relation to thedisposal of anything delivered up or seized by virtue of subsection (3) above.


299 Supplementary provisions as to fraudulent reception.

(1) Her Majesty may by Order in Council—(a) provide that section 297 applies in relation to programmes included in services

provided from a country or territory outside the United Kingdom, and(b) provide that section 298 applies in relation to such programmes and to

encrypted transmissions sent from such a country or territory.F105(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) A statutory instrument containing an Order in Council under subsection (1) shall besubject to annulment in pursuance of a resolution of either House of Parliament.

(4) Where sections 297 and 298 apply in relation to a broadcasting service or cableprogramme service, they also apply to any service run for the person providing thatservice, or a person providing programmes for that service, which consists wholly ormainly in the sending by means of a telecommunications system of sounds or visualimages, or both.

(5) In sections 297 [F106, 297A] and 298, and this section, “programme”, “broadcasting”and “cable programme service”, and related expressions, have the same meaning asin Part I (copyright).

Textual AmendmentsF105 S. 299(2) repealed by Broadcasting Act 1990 (c. 42, SIF 96), ss. 179(2)(a), 203(3), Sch. 21F106 S. 299(5): ", 297A" inserted by Broadcasting Act 1990 (c. 42, SIF 96), s. 179(2)(b)






http://www.legislation.gov.uk/id/ukpga/1990/42/section/179/2/a





http://www.legislation.gov.uk/id/ukpga/1990/42/section/179/2/b





Fraudulent application or use of trade mark

300 Fraudulent application or use of trade mark an offence.

In the M81Trade Marks Act 1938 the following sections are inserted before section 59,after the heading “Offences and restraint of use of Royal Arms"—

“58A Fraudulent application or use of trade mark an offence.

(1) It is an offence, subject to subsection (3) below, for a person—(a) to apply a mark identical to or nearly resembling a registered trade

mark to goods, or to material used or intended to be used for labelling,packaging or advertising goods, or

(b) to sell, let for hire, or offer or expose for sale or hire, or distribute—(i) goods bearing such a mark, or

(ii) material bearing such a mark which is used or intended to beused for labelling, packaging or advertising goods, or

(c) to use material bearing such a mark in the course of a business forlabelling, packaging or advertising goods, or

(d) to possess in the course of a business goods or material bearing such amark with a view to doing any of the things mentioned in paragraphs(a) to (c),

when he is not entitled to use the mark in relation to the goods in questionand the goods are not connected in the course of trade with a person who isso entitled.

(2) It is also an offence, subject to subsection (3) below, for a person to possess inthe course of a business goods or material bearing a mark identical to or nearlyresembling a registered trade mark with a view to enabling or assisting anotherperson to do any of the things mentioned in subsection (1)(a) to (c), knowingor having reason to believe that the other person is not entitled to use the markin relation to the goods in question and that the goods are not connected in thecourse of trade with a person who is so entitled.

(3) A person commits an offence under subsection (1) or (2) only if—(a) he acts with a view to gain for himself or another, or with intent to

cause loss to another, and(b) he intends that the goods in question should be accepted as connected

in the course of trade with a person entitled to use the mark in question;and it is a defence for a person charged with an offence under subsection (1)to show that he believed on reasonable grounds that he was entitled to use themark in relation to the goods in question.

(4) A person guilty of an offence under this section is liable—(a) on summary conviction to imprisonment for a term not exceeding six

months or a fine not exceeding the statutory maximum, or both;(b) on conviction on indictment to a fine or imprisonment for a term not

exceeding ten years, or both.

(5) Where an offence under this section committed by a body corporate is provedto have been committed with the consent or connivance of a director, manager,secretary or other similar officer of the body, or a person purporting to act in


233



any such capacity, he as well as the body corporate is guilty of the offence andliable to be proceeded against and punished accordingly.

In relation to a body corporate whose affairs are managed by its members“director” means a member of the body corporate.

(6) In this section “business” includes a trade or profession."

58B Delivery up of offending goods and material.

(1) The court by which a person is convicted of an offence under section 58A may,if satisfied that at the time of his arrest or charge he had in his possession,custody or control—

(a) goods or material in respect of which the offence was committed, or(b) goods of the same description as those in respect of which the

offence was committed, or material similar to that in respect of whichthe offence was committed, bearing a mark identical to or nearlyresembling that in relation to which the offence was committed,

order that the goods or material be delivered up to such person as the courtmay direct.

(2) For this purpose a person shall be treated as charged with an offence—(a) in England, Wales and Northern Ireland, when he is orally charged or

is served with a summons or indictment;(b) in Scotland, when he is cautioned, charged or served with a complaint

or indictment.

(3) An order may be made by the court of its own motion or on the applicationof the prosecutor (or, in Scotland, the Lord Advocate or procurator-fiscal), butshall not be made if it appears to the court unlikely that any order will be madeunder section 58C (order as to disposal of offending goods or material).


and in Scotland, where an order has been made under this section, the personfrom whose possession, custody or control the goods or material have beenremoved may, without prejudice to any other form of appeal under any rule oflaw, appeal against that order in the same manner as against sentence.

(5) A person to whom goods or material are delivered up in pursuance of anorder under this section shall retain it pending the making of an order undersection 58C.

(6) Nothing in this section affects the powers of the court under section 43of the Powers of Criminal Courts Act 1973, section 223 or 436 of theCriminal Procedure (Scotland) Act 1975 or Article 7 of the Criminal Justice(Northern Ireland) Order 1980 (general provisions as to forfeiture in criminalproceedings).





58C Order as to disposal of offending goods or material.

(1) Where goods or material have been delivered up in pursuance of an order undersection 58B, an application may be made to the court for an order that they bedestroyed or forfeited to such person as the court may think fit.

(2) Provision shall be made by rules of court as to the service of notice on personshaving an interest in the goods or material, and any such person is entitled—

(a) to appear in proceedings for an order under this section, whether or nothe was served with notice, and

(b) to appeal against any order made, whether or not he appeared;and an order shall not take effect until the end of the period within which noticeof an appeal may be given or, if before the end of that period notice of appealis duly given, until the final determination or abandonment of the proceedingson the appeal.

(3) Where there is more than one person interested in goods or material, the courtshall make such order as it thinks just.

(4) References in this section to a person having an interest in goods or materialinclude any person in whose favour an order could be made under this sectionor under sections 114, 204 or 231 of the Copyright, Designs and Patents Act1988 (which make similar provision in relation to infringement of copyright,rights in performances and design right).

(5) Proceedings for an order under this section may be brought—(a) in a county court in England, Wales and Northern Ireland, provided the

value of the goods or material in question does not exceed the countycourt limit for actions in tort, and

(b) in a sheriff court in Scotland;but this shall not be construed as affecting the jurisdiction of the High Courtor, in Scotland, the Court of Session.

58D Enforcement of section 58A.

(1) The functions of a local weights and measures authority include theenforcement in their area of section 58A.

(2) The following provisions of the Trade Descriptions Act 1968 apply in relationto the enforcement of that section as in relation to the enforcement of that Act—

section 27 (power to make test purchases),section 28 (power to enter premises and inspect and seize goods anddocuments),section 29 (obstruction of authorised officers), andsection 33 (compensation for loss, &c. of goods seized under s.28).

(3) Subsection (1) above does not apply in relation to the enforcement ofsection 58A in Northern Ireland, but the functions of the Department ofEconomic Development include the enforcement of that section in NorthernIreland.


235



For that purpose the provisions of the Trade Descriptions Act 1968 specifiedin subsection (2) apply as if for the references to a local weights and measuresauthority and any officer of such an authority there were substituted referencesto that Department and any of its officers.

(4) Any enactment which authorises the disclosure of information for the purposeof facilitating the enforcement of the Trade Descriptions Act 1968 shall applyas if section 58A above were contained in that Act and as if the functions ofany person in relation to the enforcement of that section were functions underthat Act.”.


Provisions for the benefit of the Hospital for Sick Children

301 Provisions for the benefit of the Hospital for Sick Children.

The provisions of Schedule 6 have effect for conferring on trustees for the benefit ofthe Hospital for Sick Children, Great Ormond Street, London, a right to a royalty inrespect of the public performance, commercial publication, broadcasting or inclusionin a cable programme service of the play “Peter Pan" by Sir James Matthew Barrie,or of any adaptation of that work, notwithstanding that copyright in the work expiredon 31st December 1987.

Financial assistance for certain international bodies

302 Financial assistance for certain international bodies.

(1) The Secretary of State may give financial assistance, in the form of grants, loans orguarantees to—

(a) any international organisation having functions relating to trade marks orother intellectual property, or

(b) any Community institution or other body established under any of theCommunity Treaties having any such functions,

with a view to the establishment or maintenance by that organisation, institution orbody of premises in the United Kingdom.

(2) Any expenditure of the Secretary of State under this section shall be defrayed out ofmoney provided by Parliament; and any sums received by the Secretary of State inconsequence of this section shall be paid into the Consolidated Fund.

General

303 Consequential amendments and repeals.

(1) The enactments specified in Schedule 7 are amended in accordance with that Schedule,the amendments being consequential on the provisions of this Act.






(2) The enactments specified in Schedule 8 are repealed to the extent specified.

304 Extent.

(1) Provision as to the extent of Part I (copyright), Part II (rights in performances) andPart III (design right) is to be found in sections 157, 207 and 255 respectively; theextent of the other provisions of this Act is as follows.

(2) Parts IV to VII extend to England and Wales, Scotland and Northern Ireland, exceptthat—

(a) sections 287 to 292 (patents county courts) extend to England and Wales only,(b) the proper law of the trust created by Schedule 6 (provisions for the benefit

of the Hospital for Sick Children) is the law of England and Wales, and(c) the amendments and repeals in Schedules 7 and 8 have the same extent as the

enactments amended or repealed.

(3) The following provisions extend to the Isle of Man subject to any modificationscontained in an Order made by Her Majesty in Council—

(a) sections 293 and 294 (patents: licences of right), and(b) paragraphs 24 and 29 of Schedule 5 (patents: effect of filing international

application for patent and power to extend time limits).

(4) Her Majesty may by Order in Council direct that the following provisions extend tothe Isle of Man, with such exceptions and modifications as may be specified in theOrder—

(a) Part IV (registered designs),(b) Part V (patent agents),(c) the provisions of Schedule 5 (patents: miscellaneous amendments) not

mentioned in subsection (3) above,(d) sections 297 to 299 (fraudulent reception of transmissions), and(e) section 300 (fraudulent application or use of trade mark).

(5) Her Majesty may by Order in Council direct that sections 297 to 299 (fraudulentreception of transmissions) extend to any of the Channel Islands, with such exceptionsand modifications as may be specified in the Order.

(6) Any power conferred by this Act to make provision by Order in Council for or inconnection with the extent of provisions of this Act to a country outside the UnitedKingdom includes power to extend to that country, subject to any modificationsspecified in the Order, any provision of this Act which amends or repeals an enactmentextending to that country.

305 Commencement.

(1) The following provisions of this Act come into force on Royal Assent—paragraphs 24 and 29 of Schedule 5 (patents: effect of filing internationalapplication for patent and power to extend time limits);section 301 and Schedule 6 (provisions for the benefit of the Hospital for SickChildren).

(2) Sections 293 and 294 (licences of right) come into force at the end of the period oftwo months beginning with the passing of this Act.


237



(3) The other provisions of this Act come into force on such day as the Secretary ofState may appoint by order made by statutory instrument, and different days may beappointed for different provisions and different purposes.

Modifications etc. (not altering text)C78 Power of appointment conferred by s. 305(3) partly exercised: S.I. 1989/816, 955, 1032, 1303,

1990/1400, 2168

306 Short title.

This Act may be cited as the Copyright, Designs and Patents Act 1988.


238 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 1 – Copyright: transitional provisions and savings

Document Generated: 2020-11-25Status: Point in time view as at 01/02/1991. This version of this Act contains provisions that are not valid for this point in time.

Changes to legislation: Copyright, Designs and Patents Act 1988 is up to date with all changes known to be inforce on or before 25 November 2020. There are changes that may be brought into force at a future date. Changesthat have been made appear in the content and are referenced with annotations. (See end of Document for details)

S C H E D U L E S

SCHEDULE 1 Section 170.

COPYRIGHT: TRANSITIONAL PROVISIONS AND SAVINGS

Modifications etc. (not altering text)C79 Sch. 1 applied (with modifications) by S.I. 1989/1293, art. 4(4)(5)(6)C80 Sch. 1 applied (with modifications)(4.5.1993) by S.I. 1993/942, arts. 2(3), 5, Sch. 4 (with art. 6)C81 Sch. 1 applied (4.5.1993) by S.I. 1993/942, arts.4, 5, Sch. 4 (with art. 6)C82 Sch. 1 applied (with modifications) (22.7.1999) by S.I. 1999/1751, arts. 2(3), 3, 4(3)-(5), 6, Sch. 5

(subject to arts. 5, 7) (as amended (22.4.2003) by S.I. 2003/774, arts. 2-5)C83 Sch. 1 extended in part (with modifications) by The Copyright (Bermuda) Order 2003 (S.I. 2003/1517),

art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.)C84 Sch. 1 extended in part (with modifications) by The Copyright (Gibraltar) Order 2005 (S.I. 2005/853),

art. 2, Sch. (the amendment coming into force in accordance with art. 1 of the amending S.I.)

Introductory1 (1) In this Schedule—

“the 1911 Act” means the M82Copyright Act 1911,“the 1956 Act” means the M83Copyright Act 1956, and“the new copyright provisions” means the provisions of this Act relating

to copyright, that is, Part I (including this Schedule) and Schedules 3, 7 and8 so far as they make amendments or repeals consequential on the provisionsof Part I.

(2) References in this Schedule to “commencement”, without more, are to the date onwhich the new copyright provisions come into force.

(3) References in this Schedule to “existing works” are to works made beforecommencement; and for this purpose a work of which the making extended over aperiod shall be taken to have been made when its making was completed.


2 (1) In relation to the 1956 Act, references in this Schedule to a work include any workor other subject-matter within the meaning of that Act.

(2) In relation to the 1911 Act—(a) references in this Schedule to copyright include the right conferred by

section 24 of that Act in substitution for a right subsisting immediately beforethe commencement of that Act;



http://www.legislation.gov.uk/id/uksi/1989/1293/article/4/4/5/6


































Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 1 – Copyright: transitional provisions and savingsDocument Generated: 2020-11-25

239



(b) references in this Schedule to copyright in a sound recording are to thecopyright under that Act in records embodying the recording; and

(c) references in this Schedule to copyright in a film are to any copyright underthat Act in the film (so far as it constituted a dramatic work for the purposesof that Act) or in photographs forming part of the film.

General principles: continuity of the law3 The new copyright provisions apply in relation to things existing at commencement

as they apply in relation to things coming into existence after commencement,subject to any express provision to the contrary.

4 (1) The provisions of this paragraph have effect for securing the continuity of the law sofar as the new copyright provisions re-enact (with or without modification) earlierprovisions.

(2) A reference in an enactment, instrument or other document to copyright, or to a workor other subject-matter in which copyright subsists, which apart from this Act wouldbe construed as referring to copyright under the 1956 Act shall be construed, so faras may be required for continuing its effect, as being, or as the case may require,including, a reference to copyright under this Act or to works in which copyrightsubsists under this Act.

(3) Anything done (including subordinate legislation made), or having effect as done,under or for the purposes of a provision repealed by this Act has effect as if doneunder or for the purposes of the corresponding provision of the new copyrightprovisions.

(4) References (expressed or implied) in this Act or any other enactment, instrument ordocument to any of the new copyright provisions shall, so far as the context permits,be construed as including, in relation to times, circumstances and purposes beforecommencement, a reference to corresponding earlier provisions.

(5) A reference (express or implied) in an enactment, instrument or other document toa provision repealed by this Act shall be construed, so far as may be required forcontinuing its effect, as a reference to the corresponding provision of this Act.

(6) The provisions of this paragraph have effect subject to any specific transitionalprovision or saving and to any express amendment made by this Act.

Subsistence of copyright5 (1) Copyright subsists in an existing work after commencement only if copyright

subsisted in it immediately before commencement.

(2) Sub-paragraph (1) does not prevent an existing work qualifying for copyrightprotection after commencement—

(a) under section 155 (qualification by virtue of first publication), or(b) by virtue of an Order under section 159 (application of Part I to countries

to which it does not extend).6 (1) Copyright shall not subsist by virtue of this Act in an artistic work made before 1st

June 1957 which at the time when the work was made constituted a design capableof registration under the M84Registered Designs Act 1949 or under the enactments




repealed by that Act, and was used, or intended to be used, as a model or pattern tobe multiplied by an industrial process.

(2) For this purpose a design shall be deemed to be used as a model or pattern to bemultiplied by any industrial process—

(a) when the design is reproduced or is intended to be reproduced on more than50 single articles, unless all the articles in which the design is reproducedor is intended to be reproduced together form only a single set of articles asdefined in section 44(1) of the Registered Designs Act 1949, or

(b) when the design is to be applied to—(i) printed paper hangings,

(ii) carpets, floor cloths or oil cloths, manufactured or sold in lengthsor pieces,

(iii) textile piece goods, or textile goods manufactured or sold in lengthsor pieces, or

(iv) lace, not made by hand.


7 (1) No copyright subsists in a film, as such, made before 1st June 1957.

(2) Where a film made before that date was an original dramatic work within the meaningof the 1911 Act, the new copyright provisions have effect in relation to the film as ifit was an original dramatic work within the meaning of Part I.

(3) The new copyright provisions have effect in relation to photographs forming part ofa film made before 1st June 1957 as they have effect in relation to photographs notforming part of a film.

8 (1) A film sound-track to which section 13(9) of the 1956 Act applied beforecommencement (film to be taken to include sounds in associated sound-track) shallbe treated for the purposes of the new copyright provisions not as part of the film,but as a sound recording.

(2) However—(a) copyright subsists in the sound recording only if copyright subsisted in the

film immediately before commencement, and it continues to subsist untilcopyright in the film expires;

(b) the author and first owner of copyright in the film shall be treated as havingbeen author and first owner of the copyright in the sound recording; and

(c) anything done before commencement under or in relation to the copyrightin the film continues to have effect in relation to the sound recording as inrelation to the film.

9 No copyright subsists in—(a) a broadcast made before 1st June 1957, or(b) a cable programme included in a cable programme service before 1st

January 1985;



241



and any such broadcast or cable programme shall be disregarded for the purposesof section 14(2) (duration of copyright in repeats).

Authorship of work10 The question who was the author of an existing work shall be determined in

accordance with the new copyright provisions for the purposes of the rightsconferred by Chapter IV of Part I (moral rights), and for all other purposes shall bedetermined in accordance with the law in force at the time the work was made.

First ownership of copyright11 (1) The question who was first owner of copyright in an existing work shall be

determined in accordance with the law in force at the time the work was made.

(2) Where before commencement a person commissioned the making of a work incircumstances falling within—

(a) section 4(3) of the 1956 Act or paragraph (a) of the proviso to section 5(1)of the 1911 Act (photographs, portraits and engravings), or

(b) the proviso to section 12(4) of the 1956 Act (sound recordings),those provisions apply to determine first ownership of copyright in any work madein pursuance of the commission after commencement.

Duration of copyright in existing works

12 (1) The following provisions have effect with respect to the duration of copyright inexisting works.

The question which provision applies to a work shall be determined by reference tothe facts immediately before commencement; and expressions used in this paragraphwhich were defined for the purposes of the 1956 Act have the same meaning as inthat Act.

(2) Copyright in the following descriptions of work continues to subsist until the dateon which it would have expired under the 1956 Act—

(a) literary, dramatic or musical works in relation to which the period of 50years mentioned in the proviso to section 2(3) of the 1956 Act (duration ofcopyright in works made available to the public after the death of the author)has begun to run;

(b) engravings in relation to which the period of 50 years mentioned in theproviso to section 3(4) of the 1956 Act (duration of copyright in workspublished after the death of the author) has begun to run;

(c) published photographs and photographs taken before 1st June 1957;(d) published sound recordings and sound recordings made before 1st June

1957;(e) published films and films falling within section 13(3)(a) of the 1956 Act

(films registered under former enactments relating to registration of films).

(3) Copyright in anonymous or pseudonymous literary, dramatic, musical or artisticworks (other than photographs) continues to subsist—




(a) if the work is published, until the date on which it would have expired inaccordance with the 1956 Act, and

(b) if the work is unpublished, until the end of the period of 50 years from the endof the calendar year in which the new copyright provisions come into forceor, if during that period the work is first made available to the public withinthe meaning of section 12(2) (duration of copyright in works of unknownauthorship), the date on which copyright expires in accordance with thatprovision;

unless, in any case, the identity of the author becomes known before that date, inwhich case section 12(1) applies (general rule: life of the author plus 50 years).

(4) Copyright in the following descriptions of work continues to subsist until the end ofthe period of 50 years from the end of the calendar year in which the new copyrightprovisions come into force—

(a) literary, dramatic and musical works of which the author has died and inrelation to which none of the acts mentioned in paragraphs (a) to (e) of theproviso to section 2(3) of the 1956 Act has been done;

(b) unpublished engravings of which the author has died;(c) unpublished photographs taken on or after 1st June 1957.


(a) unpublished sound recordings made on or after 1st June 1957;(b) films not falling within sub-paragraph (2)(e) above,

unless the recording or film is published before the end of that period in which casecopyright in it shall continue until the end of the period of 50 years from the end ofthe calendar year in which the recording or film is published.

(6) Copyright in any other description of existing work continues to subsist until the dateon which copyright in that description of work expires in accordance with sections12 to 15 of this Act.

(7) The above provisions do not apply to works subject to Crown or Parliamentarycopyright (see paragraphs 41 to 43 below).

Perpetual copyright under the Copyright Act 177513 (1) The rights conferred on universities and colleges by the M85Copyright Act 1775 shall

continue to subsist until the end of the period of 50 years from the end of the calendaryear in which the new copyright provisions come into force and shall then expire.

(2) The provisions of the following Chapters of Part I—Chapter III (acts permitted in relation to copyright works),Chapter VI (remedies for infringement),Chapter VII (provisions with respect to copyright licensing), andChapter VIII (the Copyright Tribunal),

apply in relation to those rights as they apply in relation to copyright under this Act.


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Acts infringing copyright14 (1) The provisions of Chapters II and III of Part I as to the acts constituting an

infringement of copyright apply only in relation to acts done after commencement;the provisions of the 1956 Act continue to apply in relation to acts done beforecommencement.

(2) So much of section 18(2) as extends the restricted act of issuing copies to the publicto include the rental to the public of copies of sound recordings, films or computerprograms does not apply in relation to a copy of a sound recording, film or computerprogram acquired by any person before commencement for the purpose of rentingit to the public.

(3) For the purposes of section 27 (meaning of “infringing copy”) the question whetherthe making of an article constituted an infringement of copyright, or would have doneif the article had been made in the United Kingdom, shall be determined—

(a) in relation to an article made on or after 1st June 1957 and beforecommencement, by reference to the 1956 Act, and

(b) in relation to an article made before 1st June 1957, by reference to the 1911Act.

(4) For the purposes of the application of sections 31(2), 51(2) and 62(3) (subsequentexploitation of things whose making was, by virtue of an earlier provision of thesection, not an infringement of copyright) to things made before commencement, itshall be assumed that the new copyright provisions were in force at all material times.

(5) Section 55 (articles for producing material in a particular typeface) applies wherearticles have been marketed as mentioned in subsection (1) before commencementwith the substitution for the period mentioned in subsection (3) of the period of 25years from the end of the calendar year in which the new copyright provisions comeinto force.

(6) Section 56 (transfer of copies, adaptations, &c. of work in electronic form) does notapply in relation to a copy purchased before commencement.

(7) In section 65 (reconstruction of buildings) the reference to the owner of thecopyright in the drawings or plans is, in relation to buildings constructed beforecommencement, to the person who at the time of the construction was the ownerof the copyright in the drawings or plans under the 1956 Act, the 1911 Act or anyenactment repealed by the 1911 Act.

15 (1) Section 57 (anonymous or pseudonymous works: acts permitted on assumptions asto expiry of copyright or death of author) has effect in relation to existing workssubject to the following provisions.

(2) Subsection (1)(b)(i) (assumption as to expiry of copyright) does not apply in relationto—

(a) photographs, or

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(b) the rights mentioned in paragraph 13 above (rights conferred by theM86Copyright Act 1775).

(3) Subsection (1)(b)(ii) (assumption as to death of author) applies only—(a) where paragraph 12(3)(b) above applies (unpublished anonymous or

pseudonymous works), after the end of the period of 50 years from the end ofthe calendar year in which the new copyright provisions come into force, or

(b) where paragraph 12(6) above applies (cases in which the duration ofcopyright is the same under the new copyright provisions as under theprevious law).


16 The following provisions of section 7 of the 1956 Act continue to apply in relationto existing works—

(a) subsection (6) (copying of unpublished works from manuscript or copy inlibrary, museum or other institution);

(b) subsection (7) (publication of work containing material to whichsubsection (6) applies), except paragraph (a) (duty to give notice ofintended publication);

(c) subsection (8) (subsequent broadcasting, performance, &c. of materialpublished in accordance with subsection (7));

and subsection (9)(d) (illustrations) continues to apply for the purposes of thoseprovisions.

17 Where in the case of a dramatic or musical work made before 1st July 1912, theright conferred by the 1911 Act did not include the sole right to perform the workin public, the acts restricted by the copyright shall be treated as not including—

(a) performing the work in public,(b) broadcasting the work or including it in a cable programme service, or(c) doing any of the above in relation to an adaptation of the work;

and where the right conferred by the 1911 Act consisted only of the sole right toperform the work in public, the acts restricted by the copyright shall be treated asconsisting only of those acts.

18 Where a work made before 1st July 1912 consists of an essay, article or portionforming part of and first published in a review, magazine or other periodical or workof a like nature, the copyright is subject to any right of publishing the essay, article,or portion in a separate form to which the author was entitled at the commencementof the 1911 Act, or would if that Act had not been passed, have become entitledunder section 18 of the M87Copyright Act 1842.


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Designs19 (1) Section 51 (exclusion of copyright protection in relation to works recorded or

embodied in design document or models) does not apply for ten years aftercommencement in relation to a design recorded or embodied in a design documentor model before commencement.

(2) During those ten years the following provisions of Part III (design right) apply to anyrelevant copyright as in relation to design right—

(a) sections 237 to 239 (availability of licences of right), and(b) sections 247 and 248 (application to comptroller to settle terms of licence

of right).

(3) In section 237 as it applies by virtue of this paragraph, for the reference insubsection (1) to the last five years of the design right term there shall be substituteda reference to the last five years of the period of ten years referred to in sub-paragraph (1) above, or to so much of those last five years during which copyrightsubsists.

(4) In section 239 as it applies by virtue of this paragraph, for the reference insubsection (1)(b) to section 230 there shall be substituted a reference to section 99.

(5) Where a licence of right is available by virtue of this paragraph, a person to whoma licence was granted before commencement may apply to the comptroller for anorder adjusting the terms of that licence.

(6) The provisions of sections 249 and 250 (appeals and rules) apply in relation toproceedings brought under or by virtue of this paragraph as to proceedings underPart III.

(7) A licence granted by virtue of this paragraph shall relate only to acts which wouldbe permitted by section 51 if the design document or model had been made aftercommencement.

(8) Section 100 (right to seize infringing copies, &c.) does not apply during the periodof ten years referred to in sub-paragraph (1) in relation to anything to which it wouldnot apply if the design in question had been first recorded or embodied in a designdocument or model after commencement.

(9) Nothing in this paragraph affects the operation of any rule of law preventing orrestricting the enforcement of copyright in relation to a design.

Modifications etc. (not altering text)C85 Sch. 1 para. 19(1) excluded by S.I. 1989/1100, art. 10(2)C86 Sch. 1 para. 19(2) modified by S.I. 1989/1100, art. 10(3)C87 Sch. 1 para. 19(3) excluded by S.I. 1989/1100, art. 10(3)

20 (1) Where section 10 of the 1956 Act (effect of industrial application of designcorresponding to artistic work) applied in relation to an artistic work at any timebefore commencement, section 52(2) of this Act applies with the substitution for theperiod of 25 years mentioned there of the relevant period of 15 years as defined insection 10(3) of the 1956 Act.

(2) Except as provided in sub-paragraph (1), section 52 applies only where articles aremarketed as mentioned in subsection (1)(b) after commencement.













Abolition of statutory recording licence21 Section 8 of the 1956 Act (statutory licence to copy records sold by retail) continues

to apply where notice under subsection (1)(b) of that section was given before therepeal of that section by this Act, but only in respect of the making of records—

(a) within one year of the repeal coming into force, and(b) up to the number stated in the notice as intended to be sold.

Moral rights22 (1) No act done before commencement is actionable by virtue of any provision of

Chapter IV of Part I (moral rights).

(2) Section 43 of the 1956 Act (false attribution of authorship) continues to apply inrelation to acts done before commencement.

23 (1) The following provisions have effect with respect to the rights conferred by—(a) section 77 (right to be identified as author or director), and(b) section 80 (right to object to derogatory treatment of work).

(2) The rights do not apply—(a) in relation to a literary, dramatic, musical and artistic work of which the

author died before commencement; or(b) in relation to a film made before commencement.

(3) The rights in relation to an existing literary, dramatic, musical or artistic work donot apply—

(a) where copyright first vested in the author, to anything which by virtue ofan assignment of copyright made or licence granted before commencementmay be done without infringing copyright;

(b) where copyright first vested in a person other than the author, to anythingdone by or with the licence of the copyright owner.

(4) The rights do not apply to anything done in relation to a record made in pursuanceof section 8 of the 1956 Act (statutory recording licence).

24 The right conferred by section 85 (right to privacy of certain photographs and films)does not apply to photographs taken or films made before commencement.

Assignments and licences25 (1) Any document made or event occurring before commencement which had any

operation—(a) affecting the ownership of the copyright in an existing work, or(b) creating, transferring or terminating an interest, right or licence in respect of

the copyright in an existing work,has the corresponding operation in relation to copyright in the work under this Act.

(2) Expressions used in such a document shall be construed in accordance with theireffect immediately before commencement.

26 (1) Section 91(1) of this Act (assignment of future copyright: statutory vesting oflegal interest on copyright coming into existence) does not apply in relation to anagreement made before 1st June 1957.


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(2) The repeal by this Act of section 37(2) of the 1956 Act (assignment of futurecopyright: devolution of right where assignee dies before copyright comes intoexistence) does not affect the operation of that provision in relation to an agreementmade before commencement.

27 (1) Where the author of a literary, dramatic, musical or artistic work was the first ownerof the copyright in it, no assignment of the copyright and no grant of any interestin it, made by him (otherwise than by will) after the passing of the 1911 Act andbefore 1st June 1957, shall be operative to vest in the assignee or grantee any rightswith respect to the copyright in the work beyond the expiration of 25 years from thedeath of the author.

(2) The reversionary interest in the copyright expectant on the termination of that periodmay after commencement be assigned by the author during his life but in the absenceof any assignment shall, on his death, devolve on his legal personal representativesas part of his estate.

(3) Nothing in this paragraph affects—(a) an assignment of the reversionary interest by a person to whom it has been

assigned,(b) an assignment of the reversionary interest after the death of the author by his

personal representatives or any person becoming entitled to it, or(c) any assignment of the copyright after the reversionary interest has fallen in.

(4) Nothing in this paragraph applies to the assignment of the copyright in a collectivework or a licence to publish a work or part of a work as part of a collective work.

(5) In sub-paragraph (4) “collective work” means—(a) any encyclopaedia, dictionary, yearbook, or similar work;(b) a newspaper, review, magazine, or similar periodical; and(c) any work written in distinct parts by different authors, or in which works or

parts of works of different authors are incorporated.28 (1) This paragraph applies where copyright subsists in a literary, dramatic, musical or

artistic work made before 1st July 1912 in relation to which the author, before thecommencement of the 1911 Act, made such an assignment or grant as was mentionedin paragraph (a) of the proviso to section 24(1) of that Act (assignment or grant ofcopyright or performing right for full term of the right under the previous law).

(2) If before commencement any event has occurred or notice has been given which byvirtue of paragraph 38 of Schedule 7 to the 1956 Act had any operation in relationto copyright in the work under that Act, the event or notice has the correspondingoperation in relation to copyright under this Act.

(3) Any right which immediately before commencement would by virtue of paragraph38(3) of that Schedule have been exercisable in relation to the work, or copyright init, is exercisable in relation to the work or copyright in it under this Act.

(4) If in accordance with paragraph 38(4) of that Schedule copyright would, on a dateafter the commencement of the 1956 Act, have reverted to the author or his personalrepresentatives and that date falls after the commencement of the new copyrightprovisions—

(a) the copyright in the work shall revert to the author or his personalrepresentatives, as the case may be, and




(b) any interest of any other person in the copyright which subsists on that dateby virtue of any document made before the commencement of the 1911 Actshall thereupon determine.

29 Section 92(2) of this Act (rights of exclusive licensee against successors in title ofperson granting licence) does not apply in relation to an exclusive licence grantedbefore commencement.

Bequests30 (1) Section 93 of this Act (copyright to pass under will with original document or other

material thing embodying unpublished work)—(a) does not apply where the testator died before 1st June 1957, and(b) where the testator died on or after that date and before commencement,

applies only in relation to an original document embodying a work.

(2) In the case of an author who died before 1st June 1957, the ownership after hisdeath of a manuscript of his, where such ownership has been acquired under atestamentary disposition made by him and the manuscript is of a work which has notbeen published or performed in public, is prima facie proof of the copyright beingwith the owner of the manuscript.

Remedies for infringement31 (1) Sections 96 and 97 of this Act (remedies for infringement) apply only in relation

to an infringement of copyright committed after commencement; section 17 ofthe 1956 Act continues to apply in relation to infringements committed beforecommencement.

(2) Sections 99 and 100 of this Act (delivery up or seizure of infringing copies, &c.)apply to infringing copies and other articles made before or after commencement;section 18 of the 1956 Act, and section 7 of the 1911 Act, (conversion damages, &c.),do not apply after commencement except for the purposes of proceedings begunbefore commencement.

(3) Sections 101 to 102 of this Act (rights and remedies of exclusive licensee) applywhere sections 96 to 100 of this Act apply; section 19 of the 1956 Act continues toapply where section 17 or 18 of that Act applies.

(4) Sections 104 to 106 of this Act (presumptions) apply only in proceedings broughtby virtue of this Act; section 20 of the 1956 Act continues to apply in proceedingsbrought by virtue of that Act.

32 Sections 101 and 102 of this Act (rights and remedies of exclusive licensee) do notapply to a licence granted before 1st June 1957.

33 (1) The provisions of section 107 of this Act (criminal liability for making or dealingwith infringing articles, &c.) apply only in relation to acts done after commencement;section 21 of the 1956 Act (penalties and summary proceedings in respect ofdealings which infringe copyright) continues to apply in relation to acts done beforecommencement.

(2) Section 109 of this Act (search warrants) applies in relation to offences committedbefore commencement in relation to which section 21A or 21B of the 1956 Act


249



applied; sections 21A and 21B continue to apply in relation to warrants issued beforecommencement.

Copyright Tribunal: proceedings pending on commencement34 (1) The Lord Chancellor may, after consultation with the Lord Advocate, by rules make

such provision as he considers necessary or expedient with respect to proceedingspending under Part IV of the 1956 Act immediately before commencement.

(2) Rules under this paragraph shall be made by statutory instrument which shall besubject to annulment in pursuance of a resolution of either House of Parliament.

Qualification for copyright protection35 Every work in which copyright subsisted under the 1956 Act immediately before

commencement shall be deemed to satisfy the requirements of Part I of this Act asto qualification for copyright protection.

Dependent territories36 (1) The 1911 Act shall remain in force as part of the law of any dependent territory in

which it was in force immediately before commencement until—(a) the new copyright provisions come into force in that territory by virtue of

an Order under section 157 of this Act (power to extend new copyrightprovisions), or

(b) in the case of any of the Channel Islands, the Act is repealed by Order undersub-paragraph (3) below.

(2) An Order in Council in force immediately before commencement which extends toany dependent territory any provisions of the 1956 Act shall remain in force as partof the law of that territory until—

(a) the new copyright provisions come into force in that territory by virtue ofan Order under section 157 of this Act (power to extend new copyrightprovisions), or

(b) in the case of the Isle of Man, the Order is revoked by Order under sub-paragraph (3) below;

and while it remains in force such an Order may be varied under the provisions ofthe 1956 Act under which it was made.

(3) If it appears to Her Majesty that provision with respect to copyright has been made inthe law of any of the Channel Islands or the Isle of Man otherwise than by extendingthe provisions of Part I of this Act, Her Majesty may by Order in Council repeal the1911 Act as it has effect as part of the law of that territory or, as the case may be,revoke the Order extending the 1956 Act there.

(4) A dependent territory in which the 1911 or 1956 Act remains in force shall be treated,in the law of the countries to which Part I extends, as a country to which that Partextends; and those countries shall be treated in the law of such a territory as countriesto which the 1911 Act or, as the case may be, the 1956 Act extends.

(5) If a country in which the 1911 or 1956 Act is in force ceases to be a colony of theUnited Kingdom, section 158 of this Act (consequences of country ceasing to becolony) applies with the substitution for the reference in subsection (3)(b) to the




provisions of Part I of this Act of a reference to the provisions of the 1911 or 1956Act, as the case may be.

(6) In this paragraph “dependent territory” means any of the Channel Islands, the Isleof Man or any colony.

37 (1) This paragraph applies to a country which immediately before commencement wasnot a dependent territory within the meaning of paragraph 36 above but—

(a) was a country to which the 1956 Act extended, or(b) was treated as such a country by virtue of paragraph 39(2) of Schedule 7

to that Act (countries to which the 1911 Act extended or was treated asextending);

and Her Majesty may by Order in Council conclusively declare for the purposes ofthis paragraph whether a country was such a country or was so treated.

(2) A country to which this paragraph applies shall be treated as a country to whichPart I extends for the purposes of sections 154 to 156 (qualification for copyrightprotection) until—

(a) an Order in Council is made in respect of that country under section 159(application of Part I to countries to which it does not extend), or

(b) an Order in Council is made declaring that it shall cease to be so treated byreason of the fact that the provisions of the 1956 Act or, as the case may be,the 1911 Act, which extended there as part of the law of that country havebeen repealed or amended.

(3) A statutory instrument containing an Order in Council under this paragraph shall besubject to annulment in pursuance of a resolution of either House of Parliament.

Territorial waters and the continental shelf38 Section 161 of this Act (application of Part I to things done in territorial waters or

the United Kingdom sector of the continental shelf) does not apply in relation toanything done before commencement.

British ships, aircraft and hovercraft39 Section 162 (British ships, aircraft and hovercraft) does not apply in relation to

anything done before commencement.

Crown copyright40 (1) Section 163 of this Act (general provisions as to Crown copyright) applies to an

existing work if—(a) section 39 of the 1956 Act applied to the work immediately before

commencement, and(b) the work is not one to which section 164, 165 or 166 applies (copyright in

Acts, Measures and Bills and Parliamentary copyright: see paragraphs 42and 43 below).

(2) Section 163 (1)(b) (first ownership of copyright) has effect subject to any agreemententered into before commencement under section 39(6) of the 1956 Act.

41 (1) The following provisions have effect with respect to the duration of copyright inexisting works to which section 163 (Crown copyright) applies.


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The question which provision applies to a work shall be determined by reference tothe facts immediately before commencement; and expressions used in this paragraphwhich were defined for the purposes of the 1956 Act have the same meaning as inthat Act.

(2) Copyright in the following descriptions of work continues to subsist until the dateon which it would have expired in accordance with the 1956 Act—

(a) published literary, dramatic or musical works;(b) artistic works other than engravings or photographs;(c) published engravings;(d) published photographs and photographs taken before 1st June 1957;(e) published sound recordings and sound recordings made before 1st June

1957;(f) published films and films falling within section 13(3)(a) of the 1956 Act

(films registered under former enactments relating to registration of films).

(3) Copyright in unpublished literary, dramatic or musical works continues to subsistuntil—

(a) the date on which copyright expires in accordance with section 163(3), or(b) the end of the period of 50 years from the end of the calendar year in which

the new copyright provisions come into force,whichever is the later.


(a) unpublished engravings;(b) unpublished photographs taken on or after 1st June 1957.

(5) Copyright in a film or sound recording not falling within sub-paragraph (2) abovecontinues to subsist until the end of the period of 50 years from the end of thecalendar year in which the new copyright provisions come into force, unless thefilm or recording is published before the end of that period, in which case copyrightexpires 50 years from the end of the calendar year in which it is published.

42 (1) Section 164 (copyright in Acts and Measures) applies to existing Acts of Parliamentand Measures of the General Synod of the Church of England.

(2) References in that section to Measures of the General Synod of the Church ofEngland include Church Assembly Measures.

Parliamentary copyright43 (1) Section 165 of this Act (general provisions as to Parliamentary copyright) applies

to existing unpublished literary, dramatic, musical or artistic works, but does nototherwise apply to existing works.

(2) Section 166 (copyright in Parliamentary Bills) does not apply—(a) to a public Bill which was introduced into Parliament and published before

commencement,(b) to a private Bill of which a copy was deposited in either House before

commencement, or

252 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 2 – Rights in performances: permitted acts



(c) to a personal Bill which was given a First Reading in the House of Lordsbefore commencement.

Copyright vesting in certain international organisations44 (1) Any work in which immediately before commencement copyright subsisted by

virtue of section 33 of the 1956 Act shall be deemed to satisfy the requirements ofsection 168(1); but otherwise section 168 does not apply to works made or, as thecase may be, published before commencement.

(2) Copyright in any such work which is unpublished continues to subsist until the dateon which it would have expired in accordance with the 1956 Act, or the end of theperiod of 50 years from the end of the calendar year in which the new copyrightprovisions come into force, whichever is the earlier.

Meaning of “publication”45 Section 175(3) (construction of building treated as equivalent to publication)

applies only where the construction of the building began after commencement.

Meaning of “unauthorised”46 For the purposes of the application of the definition in section 178 (minor

definitions) of the expression “unauthorised” in relation to things done beforecommencement—

(a) paragraph (a) applies in relation to things done before 1st June 1957 as ifthe reference to the licence of the copyright owner were a reference to hisconsent or acquiescence;

(b) paragraph (b) applies with the substitution for the words from “or, in a case”to the end of the words “or any person lawfully claiming under him”; and

(c) paragraph (c) shall be disregarded.


RIGHTS IN PERFORMANCES: PERMITTED ACTS

Introductory

1 (1) The provisions of this Schedule specify acts which may be done in relation to aperformance or recording notwithstanding the rights conferred by Part II; they relateonly to the question of infringement of those rights and do not affect any other rightor obligation restricting the doing of any of the specified acts.

(2) No inference shall be drawn from the description of any act which may by virtueof this Schedule be done without infringing the rights conferred by Part II as to thescope of those rights.

(3) The provisions of this Schedule are to be construed independently of each other, sothat the fact that an act does not fall within one provision does not mean that it isnot covered by another provision.

Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 2 – Rights in performances: permitted actsDocument Generated: 2020-11-25

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[F107Making of temporary copies]

Textual AmendmentsF107 Sch. 2 para. 1A and cross-heading inserted (31.10.2003) by The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 8(2) (with regs. 31-40)

1A The rights conferred by Part 2 are not infringed by the making of a temporarycopy of a recording of a performance which is transient or incidental, which isan integral and essential part of a technological process and the sole purpose ofwhich is to enable—

(a) a transmission of the recording in a network between third parties by anintermediary; or

(b) a lawful use of the recording;and which has no independent economic significance.

Criticism, reviews and news reporting

2 (1) Fair dealing with a performance or recording—(a) for the purpose of criticism or review, of that or another performance or

recording, or of a work, or(b) for the purpose of reporting current events,

does not infringe any of the rights conferred by Part II.

(2) Expressions used in this paragraph have the same meaning as in section 30.

Incidental inclusion of performance or recording

3 (1) The rights conferred by Part II are not infringed by the incidental inclusion of aperformance or recording in a sound recording, film, broadcast or cable programme.

(2) Nor are those rights infringed by anything done in relation to copies of, or the playing,showing, broadcasting or inclusion in a cable programme service of, anything whosemaking was, by virtue of sub-paragraph (1), not an infringement of those rights.

(3) A performance or recording so far as it consists of music, or words spoken or sungwith music, shall not be regarded as incidentally included in a sound recording,broadcast or cable programme if it is deliberately included.


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Things done for purposes of instruction or examination

4 (1) The rights conferred by Part II are not infringed by the copying of a recording ofa performance in the course of instruction, or of preparation for instruction, in themaking of films or film sound-tracks, provided the copying is done by a person givingor receiving instruction.

(2) The rights conferred by Part II are not infringed—(a) by the copying of a recording of a performance for the purposes of setting

or answering the questions in an examination, or(b) by anything done for the purposes of an examination by way of

communicating the questions to the candidates.

(3) Where a recording which would otherwise be an illicit recording is made inaccordance with this paragraph but is subsequently dealt with, it shall be treated asan illicit recording for the purposes of that dealing, and if that dealing infringes anyright conferred by Part II for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, or offered or exposed forsale or hire.


Playing or showing sound recording, film, broadcastor cable programme at educational establishment

5 (1) The playing or showing of a sound recording, film, broadcast or cable programmeat an educational establishment for the purposes of instruction before an audienceconsisting of teachers and pupils at the establishment and other persons directlyconnected with the activities of the establishment is not a playing or showing of aperformance in public for the purposes of infringement of the rights conferred byPart II.

(2) A person is not for this purpose directly connected with the activities of theeducational establishment simply because he is the parent of a pupil at theestablishment.

(3) Expressions used in this paragraph have the same meaning as in section 34 and anyprovision made under section 174(2) with respect to the application of that sectionalso applies for the purposes of this paragraph.

Recording of broadcasts and cable programmes by educational establishments

6 (1) A recording of a broadcast or cable programme, or a copy of such a recording, maybe made by or on behalf of an educational establishment for the educational purposesof that establishment without thereby infringing any of the rights conferred by PartII in relation to any performance or recording included in it.

(2) Where a recording which would otherwise be an illicit recording is made inaccordance with this paragraph but is subsequently dealt with, it shall be treated as


255



an illicit recording for the purposes of that dealing, and if that dealing infringes anyright conferred by Part II for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, or offered or exposed forsale or hire.

(3) Expressions used in this paragraph have the same meaning as in section 35 and anyprovision made under section 174(2) with respect to the application of that sectionalso applies for the purposes of this paragraph.


[F108Lending of copies by educational establishments]

Textual AmendmentsF108 Sch. 2 para. 6A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

[F1096A(1) The rights conferred by Part II are not infringed by the lending of copies of arecording of a performance by an educational establishment.

(2) Expressions used in this paragraph have the same meaning as in section 36A;and any provision with respect to the application of that section made undersection 174(2) (instruction given elsewhere than an educational establishment)applies also for the purposes of this paragraph.]

Textual AmendmentsF109 Sch. 2 para. 6A inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)


[F110Lending of copies by libraries or archives]

Textual AmendmentsF110 Sch. 2 para. 6B and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

[F1116B(1) The rights conferred by Part II are not infringed by the lending of copies of arecording of a performance by a prescribed library or archive (other than a publiclibrary) which is not conducted for profit.

(2) Expressions used in this paragraph have the same meaning as in section 40A(2);and any provision under section 37 prescribing libraries or archives for the purposesof that section applies also for the purposes of this paragraph.]









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Textual AmendmentsF111 Sch. 2 para. 6B inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

Modifications etc. (not altering text)C88 Sch. 2 para. 6B modified (1.12.1996) by S.I. 1996/2967, reg. 35 (with Pt. III)

Copy of work required to be made as condition of export

7 (1) If an article of cultural or historical importance or interest cannot lawfully beexported from the United Kingdom unless a copy of it is made and deposited in anappropriate library or archive, it is not an infringement of any right conferred by PartII to make that copy.


Parliamentary and judicial proceedings

8 (1) The rights conferred by Part II are not infringed by anything done for the purposesof parliamentary or judicial proceedings or for the purpose of reporting suchproceedings.


Royal Commissions and statutory inquiries

9 (1) The rights conferred by Part II are not infringed by anything done for the purposesof the proceedings of a Royal Commission or statutory inquiry or for the purpose ofreporting any such proceedings held in public.


Public records

10 (1) Material which is comprised in public records within the meaning of the M88PublicRecords Act 1958, the M89Public Records (Scotland) Act 1937 or the M90PublicRecords Act (Northern Ireland) 1923 which are open to public inspection inpursuance of that Act, may be copied, and a copy may be supplied to any person,by or with the authority of any officer appointed under that Act, without infringingany right conferred by Part II.











257



M89 1937 c. 43.M90 1923 c. 20 (N.I.).

Acts done under statutory authority

11 (1) Where the doing of a particular act is specifically authorised by an Act of Parliament,whenever passed, then, unless the Act provides otherwise, the doing of that act doesnot infringe the rights conferred by Part II.

(2) Sub-paragraph (1) applies in relation to an enactment contained in Northern Irelandlegislation as it applies to an Act of Parliament.

(3) Nothing in this paragraph shall be construed as excluding any defence of statutoryauthority otherwise available under or by virtue of any enactment.


Transfer of copies of works in electronic form

12 (1) This paragraph applies where a recording of a performance in electronic form hasbeen purchased on terms which, expressly or impliedly or by virtue of any rule oflaw, allow the purchaser to make further recordings in connection with his use ofthe recording.

(2) If there are no express terms—(a) prohibiting the transfer of the recording by the purchaser, imposing

obligations which continue after a transfer, prohibiting the assignment of anyconsent or terminating any consent on a transfer, or

(b) providing for the terms on which a transferee may do the things which thepurchaser was permitted to do,

anything which the purchaser was allowed to do may also be done by a transfereewithout infringement of the rights conferred by this Part, but any recording made bythe purchaser which is not also transferred shall be treated as an illicit recording forall purposes after the transfer.

(3) The same applies where the original purchased recording is no longer usable andwhat is transferred is a further copy used in its place.

(4) The above provisions also apply on a subsequent transfer, with the substitution forreferences in sub-paragraph (2) to the purchaser of references to the subsequenttransferor.

(5) This paragraph does not apply in relation to a recording purchased before thecommencement of Part II.







Use of recordings of spoken works in certain cases

13 (1) Where a recording of the reading or recitation of a literary work is made for thepurpose—

(a) of reporting current events, or(b) of broadcasting or including in a cable programme service the whole or part

of the reading or recitation,it is not an infringement of the rights conferred by Part II to use the recording (orto copy the recording and use the copy) for that purpose, provided the followingconditions are met.

(2) The conditions are that—(a) the recording is a direct recording of the reading or recitation and is not taken

from a previous recording or from a broadcast or cable programme;(b) the making of the recording was not prohibited by or on behalf of the person

giving the reading or recitation;(c) the use made of the recording is not of a kind prohibited by or on behalf of

that person before the recording was made; and(d) the use is by or with the authority of a person who is lawfully in possession

of the recording.


Recordings of folksongs

14 (1) A recording of a performance of a song may be made for the purpose of including itin an archive maintained by a designated body without infringing any of the rightsconferred by Part II, provided the conditions in sub-paragraph (2) below are met.

(2) The conditions are that—(a) the words are unpublished and of unknown authorship at the time the

recording is made,(b) the making of the recording does not infringe any copyright, and(c) its making is not prohibited by any performer.

(3) Copies of a recording made in reliance on sub-paragraph (1) and included in anarchive maintained by a designated body may, if the prescribed conditions are met,be made and supplied by the archivist without infringing any of the rights conferredby Part II.

(4) In this paragraph—“designated body” means a body designated for the purposes of

section 61, and“the prescribed conditions” means the conditions prescribed for the

purposes of subsection (3) of that section;and other expressions used in this paragraph have the same meaning as in that section.


259




[F112Lending of certain recordings]

Textual AmendmentsF112 Sch. 2 para. 14A and crossheading inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

F11314A(1) The Secretary of State may by order provide that in such cases as may be specifiedin the order the lending to the public of copies of films or sound recordings shall betreated as licensed by the performer subject only to the payment of such reasonableroyalty or other payment as may be agreed or determined in default of agreementby the Copyright Tribunal.

(2) No such order shall apply if, or to the extent that, there is a licensing schemecertified for the purposes of this paragraph under paragraph 16 of Schedule 2Aproviding for the grant of licences.

(3) An order may make different provision for different cases and may specify casesby reference to any factor relating to the work, the copies lent, the lender or thecircumstances of the lending.


(5) Nothing in this section affects any liability under section 184(1)(b) (secondaryinfringement: possessing or dealing with illicit recording) in respect of the lendingof illicit recordings.


Textual AmendmentsF113 Sch. 2 para. 14A inserted (1.12.1996) by S.I. 1996/2967, reg. 20(3) (with Pt. III)

Playing of sound recordings for purposes of club, society, &c

15 (1) It is not an infringement of any right conferred by Part II to play a sound recordingas part of the activities of, or for the benefit of, a club, society or other organisationif the following conditions are met.

(2) The conditions are—(a) that the organisation is not established or conducted for profit and its main

objects are charitable or are otherwise concerned with the advancement ofreligion, education or social welfare, and

(b) that the proceeds of any charge for admission to the place where therecording is to be heard are applied solely for the purposes of theorganisation.













Incidental recording for purposes of broadcast or cable programme

16 (1) A person who proposes to broadcast a recording of a performance, or include arecording of a performance in a cable programme service, in circumstances notinfringing the rights conferred by Part II shall be treated as having consent for thepurposes of that Part for the making of a further recording for the purposes of thebroadcast or cable programme.

(2) That consent is subject to the condition that the further recording—(a) shall not be used for any other purpose, and(b) shall be destroyed within 28 days of being first used for broadcasting the

performance or including it in a cable programme service.

(3) A recording made in accordance with this paragraph shall be treated as an illicitrecording—

(a) for the purposes of any use in breach of the condition mentioned in sub-paragraph (2)(a), and

(b) for all purposes after that condition or the condition mentioned in sub-paragraph (2)(b) is broken.


Recordings for purposes of supervision and control of broadcasts and cable programmes

17 (1) The rights conferred by Part II are not infringed by the making or use by the BritishBroadcasting Corporation, for the purpose of maintaining supervision and controlover programmes broadcast by them, of recordings of those programmes.

[F114(2) The rights conferred by Part II are not infringed by anything done in pursuance of—(a) section 11(1), 95(1), 145(4), (5) or (7), 155(3) or 167(1) of the Broadcasting

Act 1990;(b) a condition which by virtue of section 11(2) or 95(2) of that Act, is included

in a licence granted under Part I or III of that Act; or(c) a direction given under section 109(2) of that Act (power of Radio Authority

to require production of recordings etc.).

(3) The rights conferred by Part II are not infringed by—(a) the use by the Independent Television Commission or the Radio Authority,

in connection with the performance of any of their functions under theBroadcasting Act 1900, of any recording, script or transcript which isprovided to them under or by virtue of any provision of that Act; or

(b) the use by the Broadcasting Complaints Commission or the BroadcastingStandards Council, in connection with any complaint made to them underthat Act, of any recording or transcript requested or required to be providedto them, and so provided, under section 145(4) or (7) or section 155(3) ofthat Act.]


261



Textual AmendmentsF114 Sch. 2 para. 17(2)–(3) substituted for para. 17(2)–(4) by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(1),

Sch. 20 para. 50(2)


[F115Recording for the purposes of time-shifting]

Textual AmendmentsF115 Sch. 2 para. 17A and preceding heading inserted (31.10.2003) by The Copyright and Related Rights


17A (1) The making in domestic premises for private and domestic use of a recording ofa broadcast solely for the purpose of enabling it to be viewed or listened to at amore convenient time does not infringe any right conferred by Part 2 in relation toa performance or recording included in the broadcast.

(2) Where a recording which would otherwise be an illicit recording is made inaccordance with this paragraph but is subsequently dealt with—

(a) it shall be treated as an illicit recording for the purposes of that dealing; and(b) if that dealing infringes any right conferred by Part 2, it shall be treated as

an illicit recording for all subsequent purposes.

(3) In sub-paragraph (2), “dealt with” means sold or let for hire, offered or exposed forsale or hire or communicated to the public.



[F116Photographs of broadcasts]

Textual AmendmentsF116 Sch. 2 para. 17B and preceding heading inserted (31.10.2003) by The Copyright and Related Rights


17B (1) The making in domestic premises for private and domestic use of a photographof the whole or any part of an image forming part of a broadcast, or a copy ofsuch a photograph, does not infringe any right conferred by Part 2 in relation to aperformance or recording included in the broadcast.










http://www.legislation.gov.uk/id/ukpga/1988/48/schedule/2/paragraph/17B








(2) Where a recording which would otherwise be an illicit recording is made inaccordance with this paragraph but is subsequently dealt with—

(a) it shall be treated as an illicit recording for the purposes of that dealing; and(b) if that dealing infringes any right conferred by Part 2, it shall be treated as

an illicit recording for all subsequent purposes.

(3) In sub-paragraph (2), “dealt with” means sold or let for hire, offered or exposed forsale or hire or communicated to the public.


Free public showing or playing of broadcast or cable programme

18 (1) The showing or playing in public of a broadcast or cable programme to an audiencewho have not paid for admission to the place where the broadcast or programme isto be seen or heard does not infringe any right conferred by Part II in relation to aperformance or recording included in—

(a) the broadcast or cable programme, or(b) any sound recording or film which is played or shown in public by reception

of the broadcast or cable programme.

(2) The audience shall be treated as having paid for admission to a place—(a) if they have paid for admission to a place of which that place forms part; or(b) if goods or services are supplied at that place (or a place of which it forms

part)—(i) at prices which are substantially attributable to the facilities afforded

for seeing or hearing the broadcast or programme, or(ii) at prices exceeding those usually charged there and which are partly

attributable to those facilities.

(3) The following shall not be regarded as having paid for admission to a place—(a) persons admitted as residents or inmates of the place;(b) persons admitted as members of a club or society where the payment is

only for membership of the club or society and the provision of facilities forseeing or hearing broadcasts or programmes is only incidental to the mainpurposes of the club or society.

(4) Where the making of the broadcast or inclusion of the programme in a cableprogramme service was an infringement of the rights conferred by Part II in relationto a performance or recording, the fact that it was heard or seen in public by thereception of the broadcast or programme shall be taken into account in assessing thedamages for that infringement.



263



Reception and re-transmission of broadcast in cable programme service

19 (1) This paragraph applies where a broadcast made from a place in the United Kingdomis, by reception and immediate re-transmission, included in a cable programmeservice.

(2) The rights conferred by Part II in relation to a performance or recording included inthe broadcast are not infringed—

(a)F117(b) if and to the extent that the broadcast is made for reception in the area in

which the cable programme service is provided;but where the making of the broadcast was an infringement of those rights, the factthat the broadcast was re-transmitted as a programme in a cable programme serviceshall be taken into account in assessing the damages for that infringement.


Textual AmendmentsF117 Sch. 2 para. 19(2)(a) and the word “or" immediately following it repealed by Broadcasting Act 1990

(c. 42, SIF 96), s. 203(3), Sch. 21


[F11819A(1) An application to settle the royalty or other sum payable in pursuance of sub-paragraph (3) of paragraph 19 may be made to the Copyright Tribunal by the ownerof the rights conferred by Part II or the person making the broadcast.

(2) The Tribunal shall consider the matter and make such order as it may determine tobe reasonable in the circumstances.

(3) Either party may subsequently apply to the Tribunal to vary the order, and theTribunal shall consider the matter and make such order confirming or varying theoriginal order as it may determine to be reasonable in the circumstances.

(4) An application under sub-paragraph (3) shall not, except with the special leave ofthe Tribunal, be made within twelve months from the date of the original order orof the order on a previous application under that sub-paragraph.

(5) An order under sub-paragraph (3) has effect from the date on which it is made orsuch later date as may be specified by the Tribunal.]

Textual AmendmentsF118 Sch. 2 para. 19A inserted (1.10.1996) by 1996 c. 55, s. 138, Sch. 9 para. 6 (with s. 43(6)); S.I. 1996/2120,

art. 4(1), Sch. 1

http://www.legislation.gov.uk/id/ukpga/1988/48/schedule/2/paragraph/19/2/a













264 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 2A – LICENSING OF PERFORMERS’ PROPERTY RIGHTS



Provision of sub-titled copies of broadcast or cable programme

20 (1) A designated body may, for the purpose of providing people who are deaf or hard ofhearing, or physically or mentally handicapped in other ways, with copies which aresub-titled or otherwise modified for their special needs, make recordings of televisionbroadcasts or cable programmes without infringing any right conferred by Part II inrelation to a performance or recording included in the broadcast or cable programme.

(2) In this paragraph “designated body” means a body designated for the purposes ofsection 74 and other expressions used in this paragraph have the same meaning asin that section.

Recording of broadcast or cable programme for archival purposes

21 (1) A recording of a broadcast or cable programme of a designated class, or a copyof such a recording, may be made for the purpose of being placed in an archivemaintained by a designated body without thereby infringing any right conferred byPart II in relation to a performance or recording included in the broadcast or cableprogramme.

(2) In this paragraph “designated class” and “designated body” means a class or bodydesignated for the purposes of section 75 and other expressions used in this paragraphhave the same meaning as in that section.


[F119SCHEDULE 2A

LICENSING OF PERFORMERS’ PROPERTY RIGHTS

Textual AmendmentsF119 Sch. 2A inserted (1.12.1996) by S.I. 1996/2967, reg. 22(2) (with Pt. III)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


REGISTERED DESIGNS: MINOR AND CONSEQUENTIAL AMENDMENTS OF 1949 ACT

Modifications etc. (not altering text)C89 Sch. 3 extended (with modifications) (Isle of Man) (9.12.2001) by S.I. 2001/3678, art. 3, Sch. 3







Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 3 – Registered designs: minor and consequential amendments of 1949 ActDocument Generated: 2020-11-25

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Section 3: proceedings for registration

1 In section 3 of the M91Registered Designs Act 1949 (proceedings for registration)for subsections (2) to (6) substitute—

“(2) An application for the registration of a design in which design right subsistsshall not be entertained unless made by the person claiming to be the designright owner.

(3) For the purpose of deciding whether a design is new, the registrar may makesuch searches, if any, as he thinks fit.

(4) The registrar may, in such cases as may be prescribed, direct that for thepurpose of deciding whether a design is new an application shall be treatedas made on a date earlier or later than that on which it was in fact made.

(5) The registrar may refuse an application for the registration of a design ormay register the design in pursuance of the application subject to suchmodifications, if any, as he thinks fit; and a design when registered shall beregistered as of the date on which the application was made or is treated ashaving been made.

(6) An application which, owing to any default or neglect on the part of theapplicant, has not been completed so as to enable registration to be effectedwithin such time as may be prescribed shall be deemed to be abandoned.

(7) An appeal lies from any decision of the registrar under this section.”.


Section 4: registration of same design in respect of other articles, etc.

2 In section 4 of the M92Registered Designs Act 1949 (registration of same design inrespect of other articles, etc.), in subsection (1), for the proviso substitute—

“Provided that the right in a design registered by virtue of this section shallnot extend beyond the end of the period, and any extended period, for whichthe right subsists in the original registered design.”.


Section 5: provisions for secrecy of certain designs

3 (1) Section 5 of the Registered Designs Act 1949 is amended as follows.



266 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 3 – Registered designs: minor and consequential amendments of 1949 Act



(2) For “a competent authority" or “the competent authority", wherever occurring,substitute “the Secretary of State"; and in subsection (3)(c) for “that authority"substitute “he".


“(2) The Secretary of State shall by rules make provision for securing that wheresuch directions are given—

(a) the representation or specimen of the design, and(b) any evidence filed in support of the applicant’s contention that the

appearance of an article is material (for the purposes of section 1(3)of this Act),

shall not be open to public inspection at the Patent Office during thecontinuance in force of the directions.”

(4) In subsection (3)(b) after “representation or specimen of the design" insert “, or anysuch evidence as is mentioned in subsection (2)(b) above,".

(5) Omit subsection (5).

Section 6: provisions as to confidential disclosure, etc.

4 (1) Section 6 of the Registered Designs Act 1949 (provisions as to confidentialdisclosure, etc.) is amended as follows.

(2) In subsection (2) (display of design at certified exhibition), in paragraph (a) for“certified by the Board of Trade" substitute “certified by the Secretary of State".

(3) For subsections (4) and (5) (registration of designs corresponding to copyright artisticworks) substitute—

“(4) Where an application is made by or with the consent of the owner ofcopyright in an artistic work for the registration of a corresponding design,the design shall not be treated for the purposes of this Act as being other thannew by reason only of any use previously made of the artistic work, subjectto subsection (5).

(5) Subsection (4) does not apply if the previous use consisted of or included thesale, letting for hire or offer or exposure for sale or hire of articles to whichhad been applied industrially—

(a) the design in question, or(b) a design differing from it only in immaterial details or in features

which are variants commonly used in the trade,and that previous use was made by or with the consent of the copyrightowner.

(6) The Secretary of State may make provision by rules as to the circumstancesin which a design is to be regarded for the purposes of this section as “appliedindustrially” to articles, or any description of articles.”.


267



Section 9: exemption of innocent infringer from liability for damages5 In section 9 of the M93Registered Designs Act 1949 (exemption of innocent infringer

from liability for damages), in subsections (1) and (2) for “copyright in a registereddesign” substitute “ the right in a registered design ”.


Section 11: cancellation of registration

6 (1) Section 11 of the Registered Designs Act 1949 (cancellation of registration) isamended as follows.

(2) In subsection (2) omit “or original".

(3) For subsections (2A) and (3) substitute—

“(3) At any time after a design has been registered, any person interested mayapply to the registrar for the cancellation of the registration on the groundthat—

(a) the design was at the time it was registered a corresponding designin relation to an artistic work in which copyright subsisted, and

(b) the right in the registered design has expired in accordance withsection 8(4) of this Act (expiry of right in registered design on expiryof copyright in artistic work);

and the registrar may make such order on the application as he thinks fit.

(4) A cancellation under this section takes effect—(a) in the case of cancellation under subsection (1), from the date of the

registrar’s decision,(b) in the case of cancellation under subsection (2), from the date of

registration,(c) in the case of cancellation under subsection (3), from the date on

which the right in the registered design expired,or, in any case, from such other date as the registrar may direct.

(5) An appeal lies from any order of the registrar under this section.”.

Section 14: registration where application has been made in convention country7 In section 14 of the Registered Designs Act 1949 (registration where application

has been made in convention country), for subsections (2) and (3) substitute—

“(2) Where an application for registration of a design is made by virtue of thissection, the application shall be treated, for the purpose of determiningwhether that or any other design is new, as made on the date of the applicationfor protection in the convention country or, if more than one such applicationwas made, on the date of the first such application.





(3) Subsection (2) shall not be construed as excluding the power to givedirections under section 3(4) of this Act in relation to an application madeby virtue of this section.”.

Section 15: extension of time for application under s.14 in certain cases8 In section 15(1) of the M94Registered Designs Act 1949 (power to make rules

empowering registrar to extend time for applications under s.14) for “the Board ofTrade are satisfied” substitute “ the Secretary of State is satisfied ” and for “they”substitute “ he ”.


Section 16: protection of designs communicated under international agreements

9 In section 16 of the Registered Designs Act 1949 (protection of designscommunicated under international agreements)—

(a) in subsection (1) for “the Board of Trade" substitute “the Secretary ofState", and

(b) in subsection (3) for “the Board of Trade" substitute “the Secretary ofState" and for “the Board are satisfied" substitute “the Secretary of Stateis satisfied".

Section 19: registration of assignments, &c.10 In section 19 of the Registered Designs Act 1949 (registration of assignments, &c.),

after subsection (3) insert—

“(3A) Where design right subsists in a registered design, the registrar shall notregister an interest under subsection (3) unless he is satisfied that the personentitled to that interest is also entitled to a corresponding interest in thedesign right.

(3B) Where design right subsists in a registered design and the proprietor of theregistered design is also the design right owner, an assignment of the designright shall be taken to be also an assignment of the right in the registereddesign, unless a contrary intention appears.”.

Section 20: rectification of the register11 In section 20 of the Registered Designs Act 1949 (rectification of the register), after

subsection (4) add—

“(5) A rectification of the register under this section has effect as follows—(a) an entry made has effect from the date on which it should have been

made,(b) an entry varied has effect as if it had originally been made in its

varied form, and



269



(c) an entry deleted shall be deemed never to have had effect,nless, in any case, the court directs otherwise.”.

Section 22: inspection of registered designs12 (1) Section 22 of the Registered Designs Act 1949 (inspection of registered designs) is

amended as follows.


“(1) Where a design has been registered under this Act, there shall be open toinspection at the Patent Office on and after the day on which the certificateof registration is issued—


appearance of an article is material (for the purposes of section 1(3)of this Act).

This subsection has effect subject to the following provisions of this sectionand to any rules made under section 5(2) of this Act.”.

(3) In subsection (2), subsection (3) (twice) and subsection (4) for “representation orspecimen of the design” substitute “ representation, specimen or evidence ”.

Section 23: information as to existence of right in registered design13 For section 23 of the M95Registered Designs Act 1949 (information as to existence

of right in registered design) substitute—

“23 Information as to existence of right in registered design.“23 “23 Information as to existence of right in registered design.

On the request of a person furnishing such information as may enable theregistrar to identify the design, and on payment of the prescribed fee, theregistrar shall inform him—

(a) whether the design is registered and, if so, in respect of what articles,and

(b) whether any extension of the period of the right in the registereddesign has been granted,

and shall state the date of registration and the name and address of theregistered proprietor.”.


Section 25: certificate of contested validity of registration14 In section 25 of the Registered Designs Act 1949 (certificate of contested validity of

registration), in subsection (2) for “the copyright in the registered design”substitute“ the right in the registered design ”.





Section 26: remedy for groundless threats of infringement proceedings15 (1) Section 26 of the Registered Designs Act 1949 (remedy for groundless threats of

infringement proceedings) is amended as follows.

(2) In subsections (1) and (2) for “the copyright in a registered design” substitute “ theright in a registered design ”.


“(2A) Proceedings may not be brought under this section in respect of a threat tobring proceedings for an infringement alleged to consist of the making orimporting of anything.”.

Section 27: the court16 For section 27 of the Registered Designs Act 1949 (the court) substitute—

“27 The court.“27 “27 The court.

(1) In this Act “the court” means—(a) in England and Wales the High Court or any patents county court

having jurisdiction by virtue of an order under section 287 of theCopyright, Designs and Patents Act 1988,

(b) in Scotland, the Court of Session, and(c) in Northern Ireland, the High Court.

(2) Provision may be made by rules of court with respect to proceedings in theHigh Court in England and Wales for references and applications under thisAct to be dealt with by such judge of that court as the Lord Chancellor mayselect for the purpose.”.

Section 28: the Appeal Tribunal17 (1) Section 28 of the Registered Designs Act 1949 (the Appeal Tribunal) is amended

as follows.

(2) For subsection (2) (members of Tribunal) substitute—

“(2) The Appeal Tribunal shall consist of—(a) one or more judges of the High Court nominated by the Lord

Chancellor, and(b) one judge of the Court of Session nominated by the Lord President

of that Court.”.

(3) In subsection (5) (costs), after “costs” (twice) insert “ or expenses ”, and for the wordsfrom “and any such order” to the end substitute—

“and any such order may be enforced—(a) in England and Wales or Northern Ireland, in the same way as an

order of the High Court;(b) in Scotland, in the same way as a decree for expenses granted by the

Court of Session.”.


271



(4) For subsection (10) (seniority of judges) substitute—

“(10) In this section “the High Court” means the High Court in England and Wales;and for the purposes of this section the seniority of judges shall be reckonedby reference to the dates on which they were appointed judges of that courtor the Court of Session.”.

(5) The amendments to section 28 made by section 10(5) of the M96Administration ofJustice Act 1970 (power to make rules as to right of audience) shall be deemed alwaysto have extended to Northern Ireland.


Section 29: exercise of discretionary powers of registrar18 In section 29 of the M97Registered Designs Act 1949 (exercise of discretionary

powers of registrar) for “the registrar shall give” substitute “ rules made by theSecretary of State under this Act shall require the registrar to give ”.


Section 30: costs and security for costs19 For section 30 of the Registered Designs Act 1949 (costs and security for costs)

substitute—

“30 Costs and security for costs.“30 “30 Costs and security for costs.

(1) Rules made by the Secretary of State under this Act may make provisionempowering the registrar, in any proceedings before him under this Act—

(a) to award any party such costs as he may consider reasonable, and(b) to direct how and by what parties they are to be paid.

(2) Any such order of the registrar may be enforced—(a) in England and Wales or Northern Ireland, in the same way as an

order of the High Court;(b) in Scotland, in the same way as a decree for expenses granted by

the Court of Session.

(3) Rules made by the Secretary of State under this Act may make provisionempowering the registrar to require a person, in such cases as may beprescribed, to give security for the costs of—

(a) an application for cancellation of the registration of a design,(b) an application for the grant of a licence in respect of a registered

design, or






(c) an appeal from any decision of the registrar under this Act,and enabling the application or appeal to be treated as abandoned in defaultof such security being given.”.

Section 31: evidence before registrar20 For section 31 of the M98Registered Designs Act 1949 (evidence before registrar)

substitute—

“31 Evidence before registrar.“31 “31 Evidence before registrar.

Rules made by the Secretary of State under this Act may make provision—(a) as to the giving of evidence in proceedings before the registrar under

this Act by affidavit or statutory declaration;(b) conferring on the registrar the powers of an official referee of the

Supreme Court as regards the examination of witnesses on oath andthe discovery and production of documents; and

(c) applying in relation to the attendance of witnesses in proceedingsbefore the registrar the rules applicable to the attendance ofwitnesses in proceedings before such a referee.”.


Section 32: power of registrar to refuse to deal with certain agents21 Section 32 of the Registered Designs Act 1949 (power of registrar to refuse to deal

with certain agents) is repealed.

Section 33: offences under s.5 (secrecy of certain designs)22 (1) Section 33 of the Registered Designs Act 1949 (offences under s.5 (secrecy of certain

designs)) is amended as follows.

(2) In subsection (1), for paragraphs (a) and (b) substitute—“(a) on conviction on indictment to imprisonment for a term not

exceeding two years or a fine, or both;(b) on summary conviction to imprisonment for a term not exceeding

six months or a fine not exceeding the statutory maximum, or both.”.

(3) Omit subsection (2).

(4) The above amendments do not apply in relation to offences committed before thecommencement of Part IV.

Section 34: falsification of register, &c.23 (1) In section 34 of the Registered Designs Act 1949 (falsification of register, &c.) for

“shall be guilty of a misdemeanour” substitute—



273



“shall be guilty of an offence and liable—(a) on conviction on indictment to imprisonment for a term not

exceeding two years or a fine, or both;(b) on summary conviction to imprisonment for a term not exceeding

six months or a fine not exceeding the statutory maximum, or both.”.

(2) The above amendment does not apply in relation to offences committed before thecommencement of Part IV.

Section 35: fine for falsely representing a design as registered24 (1) Section 35 of the M99Registered Designs Act 1949 (fine for falsely representing a

design as registered) is amended as follows.

(2) In subsection (1) for the words from “a fine not exceeding £50” substitute “ a finenot exceeding level 3 on the standard scale ”.

(3) In subsection (2)—(a) for “the copyright in a registered design” substitute “ the right in a registered

design ”;(b) for “subsisting copyright in the design” substitute “ subsisting right in the

design under this Act ”; and(c) for the words from “a fine” to the end substitute “ a fine not exceeding level

1 on the standard scale ”.

(4) The amendment in sub-paragraph (2) does not apply in relation to offencescommitted before the commencement of Part IV.


Section 35A: offence by body corporate - liability of officers25 (1) In the Registered Designs Act 1949 after section 35 insert—

“35A Offence by body corporate: liability of officers.“35A “35A Offence by body corporate: liability of officers.

(1) Where an offence under this Act committed by a body corporate is proved tohave been committed with the consent or connivance of a director, manager,secretary or other similar officer of the body, or a person purporting to act inany such capacity, he as well as the body corporate is guilty of the offenceand liable to be proceeded against and punished accordingly.

(2) In relation to a body corporate whose affairs are managed by its members“director” means a member of the body corporate.”.

(2) The above amendment does not apply in relation to offences committed before thecommencement of Part IV.





Section 36: general power to make rules, &c.26 (1) Section 36 of the Registered Designs Act 1949 (general power to make rules, &c.)

is amended as follows.

(2) In subsection (1) for “the Board of Trade” and “the Board” substitute “ the Secretaryof State ”, and for “as they think expedient” substitute “ as he thinks expedient ”.

(3) For the words in subsection (1) from “and in particular” to the end substitute thefollowing subsections—

“(1A) Rules may, in particular, make provision—(a) prescribing the form of applications for registration of designs and

of any representations or specimens of designs or other documentswhich may be filed at the Patent Office, and requiring copies to befurnished of any such representations, specimens or documents;

(b) regulating the procedure to be followed in connection with anyapplication or request to the registrar or in connection withany proceeding before him, and authorising the rectification ofirregularities of procedure;

(c) providing for the appointment of advisers to assist the registrar inproceedings before him;

(d) regulating the keeping of the register of designs;(e) authorising the publication and sale of copies of representations of

designs and other documents in the Patent Office;(f) prescribing anything authorised or required by this Act to be

prescribed by rules.

(1B) The remuneration of an adviser appointed to assist the registrar shall bedetermined by the Secretary of State with the consent of the Treasury andshall be defrayed out of money provided by Parliament.”.

Section 37: provisions as to rules and Orders27 (1) Section 37 of the M100Registered Designs Act 1949 (provisions as to rules and orders)

is amended as follows.

(2) Omit subsection (1) (duty to advertise making of rules).

(3) In subsections (2), (3) and (4) for “the Board of Trade” substitute “ the Secretaryof State ”.


Section 38: proceedings of the Board of Trade28 Section 38 of the Registered Designs Act 1949 (proceedings of the Board of Trade)

is repealed.



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Section 39: hours of business and excluded days29 In section 39 of the Registered Designs Act 1949 (hours of business and excluded

days), in subsection (1) for “the Board of Trade” substitute “ the Secretary of State ”.

Section 40: fees30 In section 40 of the Registered Designs Act 1949 (fees) for “the Board of Trade”

substitute “ the Secretary of State ”.

Section 44: interpretation

31 (1) In section 44 of the Registered Designs Act 1949 (interpretation), subsection (1) isamended as follows.

(2) In the definition of “artistic work" for “the Copyright Act 1956" substitute “Part I ofthe Copyright, Designs and Patents Act 1988".

(3) At the appropriate place insert—

““author” in relation to a design, has the meaning given by section 2(3)and (4);”.

(4) Omit the definition of “copyright".

(5) In the definition of “corresponding design", for the words from “has the samemeaning" to the end substitute “, in relation to an artistic work, means a design whichif applied to an article would produce something which would be treated for thepurposes of Part I of the Copyright, Designs and Patents Act 1988 as a copy of thatwork;".

(6) For the definition of “court" substitute—

““the court” shall be construed in accordance with section 27 of this Act;”.

(7) In the definition of “design" for “subsection (3) of section one of this Act" substitute“section 1(1) of this Act".

(8) At the appropriate place insert—

““employee”, “employment” and “employer” refer to employment undera contract of service or of apprenticeship,”.

(9) Omit the definition of “Journal".

(10) In the definition of “prescribed" for “the Board of Trade" substitute “the Secretaryof State".

Section 45: application to Scotland32 In section 45 of the M101Registered Designs Act 1949 (application to Scotland), omit

paragraphs (1) and (2).





Section 46: application to Northern Ireland33 (1) Section 46 of the Registered Designs Act 1949 (application to Northern Ireland) is

amended as follows.

(2) Omit paragraphs (1) and (2).

(3) For paragraph (3) substitute—

“(3) References to enactments include enactments comprised in Northern Irelandlegislation:”.

(4) After paragraph (3) insert—

“(3A) References to the Crown include the Crown in right of Her Majesty’sGovernment in Northern Ireland:”.

(5) In paragraph (4) for “a department of the Government of Northern Ireland” substitute“ a Northern Ireland department ”, and at the end add “ and in relation to a NorthernIreland department references to the Treasury shall be construed as references to theDepartment of Finance and Personnel ”.

Section 47: application to Isle of Man34 For section 47 of the Registered Designs Act 1949 (application to Isle of Man)

substitute—

“47 Application to Isle of Man.“47 “47 Application to Isle of Man.

This Act extends to the Isle of Man, subject to any modifications containedin an Order made by Her Majesty in Council, and accordingly, subject to anysuch Order, references in this Act to the United Kingdom shall be construedas including the Isle of Man.”.

Section 47A: territorial waters and the continental shelf35 In the Registered Designs Act 1949, after section 47 insert—

“47A Territorial waters and the continental shelf.“47A “47A Territorial waters and the continental shelf.

(1) For the purposes of this Act the territorial waters of the United Kingdomshall be treated as part of the United Kingdom.

(2) This Act applies to things done in the United Kingdom sector of thecontinental shelf on a structure or vessel which is present there for purposesdirectly connected with the exploration of the sea bed or subsoil or the


Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 4 – The Registered Designs Act 1949 as amended Arrangement of SectionsDocument Generated: 2020-11-25

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exploitation of their natural resources as it applies to things done in theUnited Kingdom.

(3) The United Kingdom sector of the continental shelf means the areasdesignated by order under section 1(7) of the Continental Shelf Act 1964.”.

Section 48: repeals, savings and transitional provisions36 In section 48 of the Registered Designs Act 1949 (repeals, savings and transitional

provisions), omit subsection (1) (repeals).

Schedule 1: provisions as to Crown use of registered designs37 (1) The First Schedule to the M102Registered Designs Act 1949 (provisions as to Crown

use of registered designs) is amended as follows.

(2) In paragraph 2(1) after “copyright” insert “ or design right ”.

(3) In paragraph 3(1) omit “in such manner as may be prescribed by rules of court”.

(4) In paragraph 4(2) (definition of “period of emergency”) for the words from “theperiod ending” to “any other period” substitute “ a period ”.

(5) For paragraph 4(3) substitute—

“(3) No Order in Council under this paragraph shall be submitted to Her Majestyunless a draft of it has been laid before and approved by a resolution of eachHouse of Parliament.”.


Schedule 2: enactments repealed38 Schedule 2 to the Registered Designs Act 1949 (enactments repealed) is repealed.


THE REGISTERED DESIGNS ACT 1949 AS AMENDED ARRANGEMENT OF SECTIONS

Modifications etc. (not altering text)C90 Sch. 4 extended (with modifications) (Isle of Man) (9.12.2001) by S.I. 2001/3678, art. 3, Sch. 3

Registrable designs and proceedings for registration1 Designs registrable under Act.2 Proprietorship of designs.3 Proceedings for registration.





278 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 4 – The Registered Designs Act 1949 as amended Arrangement of Sections



4 Registration of same design in respect of other articles.5 Provision for secrecy of certain designs.6 Provisions as to confidential disclosure, &c.

Effect of registration, &c.7 Right given by registration.8 Duration of right in registered design.8A Restoration of lapsed right in design.8B Effect of order for restoration of right.9 Exemption of innocent infringer from liability for damages.10 Compulsory licence in respect of registered design.11 Cancellation of registration.11A Powers exercisable for protection of the public interest.11B Undertaking to take licence of right in infringement proceedings.12 Use for services of the Crown.

International arrangements13 Orders in Council as to convention countries.14 Registration of design where application for protection in convention country has

been made.15 Extension of time for applications under s.14 in certain cases.16 Protection of designs communicated under international agreements.

Register of designs, &c.17 Register of designs.18 Certificate of registration.19 Registration of assignments, &c.20 Rectification of register.21 Power to correct clerical errors.22 Inspection of registered designs.23 Information as to existence of right in registered design.24 ... ... ... ... ... ... ...

Legal proceedings and appeals25 Certificate of contested validity of registration.26 Remedy for groundless threats of infringement proceedings.27 The court.


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28 The Appeal Tribunal.

Powers and duties of registrar29 Exercise of discretionary powers of registrar.30 Costs and security for costs.31 Evidence before registrar.32 ... ... ... ... ... ... ...33 Offences under s.5.34 Falsification of register, &c.35 Fine for falsely representing a design as registered.35A Offence by body corporate: liability of officers.

Rules, &c.36 General power of Secretary of State to make rules, &c.37 Provisions as to rules and Orders.38 ... ... ... ... ... ... ...

Supplemental39 Hours of business and excluded days.40 Fees.41 Service of notices, &c., by post.42 Annual report of registrar.43 Savings.44 Interpretation.45 Application to Scotland.46 Application to Northern Ireland.47 Application to Isle of Man.47A Territorial waters and the continental shelf.48 Repeals, savings and transitional provisions.49 Short title and commencement.

Schedules:

Schedule 1—Provisions as to the use of registered designs for the services of theCrown and as to rights of third parties in respect of such use.

Schedule 2—... ... ... ... ... ... ...

An Act to consolidate certain enactments relating to registered designs.

[16th December 1949]




Registrable designs and proceedings for registration

Designs registrable under Act.1 (1) In this Act “design” means features of shape, configuration, pattern or ornament

applied to an article by any industrial process, being features which in the finishedarticle appeal to and are judged by the eye, but does not include—

(a) a method or principle of construction, or(b) features of shape or configuration of an article which—

(i) are dictated solely by the function which the article has to perform,or

(ii) are dependent upon the appearance of another article of which thearticle is intended by the author of the design to form an integral part.

(2) A design which is new may, upon application by the person claiming to be theproprietor, be registered under this Act in respect of any article, or set of articles,specified in the application.

(3) A design shall not be registered in respect of an article if the appearance of the articleis not material, that is, if aesthetic considerations are not normally taken into accountto a material extent by persons acquiring or using articles of that description, andwould not be so taken into account if the design were to be applied to the article.

(4) A design shall not be regarded as new for the purposes of this Act if it is the sameas a design—

(a) registered in respect of the same or any other article in pursuance of a priorapplication, or

(b) published in the United Kingdom in respect of the same or any other articlebefore the date of the application,

or if it differs from such a design only in immaterial details or in features which arevariants commonly used in the trade.

This subsection has effect subject to the provisions of sections 4, 6 and 16 of this Act.

(5) The Secretary of State may by rules provide for excluding from registration underthis Act designs for such articles of a primarily literary or artistic character as theSecretary of State thinks fit.

Proprietorship of designs.2 (1) The author of a design shall be treated for the purposes of this Act as the original

proprietor of the design, subject to the following provisions.

(1A) Where a design is created in pursuance of a commission for money or money’s worth,the person commissioning the design shall be treated as the original proprietor ofthe design.

(1B) Where, in a case not falling within subsection (1A), a design is created by anemployee in the course of his employment, his employer shall be treated as theoriginal proprietor of the design.

(2) Where a design, or the right to apply a design to any article, becomes vested, whetherby assignment, transmission or operation of law, in any person other than the originalproprietor, either alone or jointly with the original proprietor, that other person, or as


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the case may be the original proprietor and that other person, shall be treated for thepurposes of this Act as the proprietor of the design or as the proprietor of the designin relation to that article.

(3) In this Act the “author” of a design means the person who creates it.

(4) In the case of a design generated by computer in circumstances such that there is nohuman author, the person by whom the arrangements necessary for the creation ofthe design are made shall be taken to be the author.

Proceedings for registration.3 (1) An application for the registration of a design shall be made in the prescribed form

and shall be filed at the Patent Office in the prescribed manner.

(2) An application for the registration of a design in which design right subsists shall notbe entertained unless made by the person claiming to be the design right owner.

(3) For the purpose of deciding whether a design is new, the registrar may make suchsearches, if any, as he thinks fit.

(4) The registrar may, in such cases as may be prescribed, direct that for the purpose ofdeciding whether a design is new an application shall be treated as made on a dateearlier or later than that on which it was in fact made.

(5) The registrar may refuse an application for the registration of a design or may registerthe design in pursuance of the application subject to such modifications, if any, as hethinks fit; and a design when registered shall be registered as of the date on whichthe application was made or is treated as having been made.

(6) An application which, owing to any default or neglect on the part of the applicant,has not been completed so as to enable registration to be effected within such timeas may be prescribed shall be deemed to be abandoned.

(7) An appeal lies from any decision of the registrar under this section.

Registration of same design in respect of other articles, etc.4 (1) Where the registered proprietor of a design registered in respect of any article makes

an application—(a) for registration in respect of one or more other articles, of the registered

design, or(b) for registration in respect of the same or one or more other articles, of a

design consisting of the registered design with modifications or variationsnot sufficient to alter the character or substantially to affect the identitythereof,

the application shall not be refused and the registration made on that application shallnot be invalidated by reason only of the previous registration or publication of theregistered design:

Provided that the right in a design registered by virtue of this section shall not extendbeyond the end of the period, and any extended period, for which the right subsistsin the original registered design.

(2) Where any person makes an application for the registration of a design in respect ofany article and either—




(a) that design has been previously registered by another person in respect ofsome other article; or

(b) the design to which the application relates consists of a design previouslyregistered by another person in respect of the same or some other articlewith modifications or variations not sufficient to alter the character orsubstantially to affect the identity thereof,

then, if at any time while the application is pending the applicant becomes theregistered proprietor of the design previously registered, the foregoing provisions ofthis section shall apply as if at the time of making the application the applicant hadbeen the registered proprietor of that design.

Provisions for secrecy of certain designs.5 (1) Where, either before or after the commencement of this Act, an application for the

registration of a design has been made, and it appears to the registrar that the designis one of a class notified to him by the Secretary of State as relevant for defencepurposes, he may give directions for prohibiting or restricting the publication ofinformation with respect to the design, or the communication of such information toany person or class of persons specified in the directions.

(2) The Secretary of State shall by rules make provision for securing that where suchdirections are given—


appearance of an article is material (for the purposes of section 1(3) of thisAct),

shall not be open to public inspection at the Patent Office during the continuance inforce of the directions.

(3) Where the registrar gives any such directions as aforesaid, he shall give notice ofthe application and of the directions to the Secretary of State, and thereupon thefollowing provisions shall have effect, that is to say:—

(a) the Secretary of State shall, upon receipt of such notice, consider whether thepublication of the design would be prejudicial to the defence of the realm andunless a notice under paragraph (c) of this subsection has previously beengiven by that authority to the registrar, shall reconsider that question beforethe expiration of nine months from the date of filing of the application forregistration of the design and at least once in every subsequent year;

(b) for the purpose aforesaid, the Secretary of State may, at any time after thedesign has been registered or, with the consent of the applicant, at any timebefore the design has been registered, inspect the representation or specimenof the design, or any such evidence as is mentioned in subsection (2)(b)above, filed in pursuance of the application;

(c) if upon consideration of the design at any time it appears to the Secretaryof State that the publication of the design would not, or would no longer, beprejudicial to the defence of the realm, he shall give notice to the registrarto that effect;

(d) on the receipt of any such notice the registrar shall revoke the directions andmay, subject to such conditions, if any, as he thinks fit, extend the time fordoing anything required or authorised to be done by or under this Act inconnection with the application or registration, whether or not that time haspreviously expired.


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(4) No person resident in the United Kingdom shall, except under the authority of awritten permit granted by or on behalf of the registrar, make or cause to be made anyapplication outside the United Kingdom for the registration of a design of any classprescribed for the purposes of this subsection unless—

(a) an application for registration of the same design has been made in the UnitedKingdom not less than six weeks before the application outside the UnitedKingdom; and

(b) either no directions have been given under subsection (1) of this section inrelation to the application in the United Kingdom or all such directions havebeen revoked:

Provided that this subsection shall not apply in relation to a design for which anapplication for protection has first been filed in a country outside the United Kingdomby a person resident outside the United Kingdom.... ... ... ...

Provisions as to confidential disclosure, etc.6 (1) An application for the registration of a design shall not be refused, and the registration

of a design shall not be invalidated, by reason only of—(a) the disclosure of the design by the proprietor to any other person in such

circumstances as would make it contrary to good faith for that other personto use or publish the design;

(b) the disclosure of the design in breach of good faith by any person other thanthe proprietor of the design; or

(c) in the case of a new or original textile design intended for registration, theacceptance of a first and confidential order for goods bearing the design.

(2) An application for the registration of a design shall not be refused and the registrationof a design shall not be invalidated by reason only—

(a) that a representation of the design, or any article to which the design hasbeen applied, has been displayed, with the consent of the proprietor of thedesign, at an exhibition certified by the Secretary of State for the purposesof this subsection;

(b) that after any such display as aforesaid, and during the period of theexhibition, a representation of the design or any such article as aforesaid hasbeen displayed by any person without the consent of the proprietor; or

(c) that a representation of the design has been published in consequence of anysuch display as is mentioned in paragraph (a) of this subsection,

if the application for registration of the design is made not later than six months afterthe opening of the exhibition.

(3) An application for the registration of a design shall not be refused, and the registrationof a design shall not be invalidated, by reason only of the communication of thedesign by the proprietor thereof to a government department or to any personauthorised by a government department to consider the merits of the design, or ofanything done in consequence of such a communication.

(4) Where an application is made by or with the consent of the owner of copyright in anartistic work for the registration of a corresponding design, the design shall not betreated for the purposes of this Act as being other than new by reason only of anyuse previously made of the artistic work, subject to subsection (5).




(5) Subsection (4) does not apply if the previous use consisted of or included the sale,letting for hire or offer or exposure for sale or hire of articles to which had beenapplied industrially—

(a) the design in question, or(b) a design differing from it only in immaterial details or in features which are

variants commonly used in the trade,and that previous use was made by or with the consent of the copyright owner.

(6) The Secretary of State may make provision by rules as to the circumstances in whicha design is to be regarded for the purposes of this section as “applied industrially”to articles, or any description of articles.

Effect of registration, &c.

Right given by registration.7 (1) The registration of a design under this Act gives the registered proprietor the

exclusive right—(a) to make or import—

(i) for sale or hire, or(ii) for use for the purposes of a trade or business, or

(b) to sell, hire or offer or expose for sale or hire,an article in respect of which the design is registered and to which that design or adesign not substantially different from it has been applied.

(2) The right in the registered design is infringed by a person who without the licenceof the registered proprietor does anything which by virtue of subsection (1) is theexclusive right of the proprietor.

(3) The right in the registered design is also infringed by a person who, without thelicence of the registered proprietor makes anything for enabling any such article tobe made, in the United Kingdom or elsewhere, as mentioned in subsection (1).

(4) The right in the registered design is also infringed by a person who without the licenceof the registered proprietor—

(a) does anything in relation to a kit that would be an infringement if done inrelation to the assembled article (see subsection (1)), or

(b) makes anything for enabling a kit to be made or assembled, in the UnitedKingdom or elsewhere, if the assembled article would be such an article asis mentioned in subsection (1);

and for this purpose a “kit” means a complete or substantially complete set ofcomponents intended to be assembled into an article.

(5) No proceedings shall be taken in respect of an infringement committed before thedate on which the certificate of registration of the design under this Act is granted.

(6) The right in a registered design is not infringed by the reproduction of a feature ofthe design which, by virtue of section 1(1)(b), is left out of account in determiningwhether the design is registrable.


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Duration of right in registered design.8 (1) The right in a registered design subsists in the first instance for a period of five years

from the date of the registration of the design.

(2) The period for which the right subsists may be extended for a second, third, fourthand fifth period of five years, by applying to the registrar for an extension and payingthe prescribed renewal fee.

(3) If the first, second, third or fourth period expires without such application andpayment being made, the right shall cease to have effect; and the registrar shall, inaccordance with rules made by the Secretary of State, notify the proprietor of thatfact.

(4) If during the period of six months immediately following the end of that period anapplication for extension is made and the prescribed renewal fee and any prescribedadditional fee is paid, the right shall be treated as if it had never expired, with theresult that—

(a) anything done under or in relation to the right during that further period shallbe treated as valid,

(b) an act which would have constituted an infringement of the right if it had notexpired shall be treated as an infringement, and

(c) an act which would have constituted use of the design for the services of theCrown if the right had not expired shall be treated as such use.

(5) Where it is shown that a registered design—(a) was at the time it was registered a corresponding design in relation to an

artistic work in which copyright subsists, and(b) by reason of a previous use of that work would not have been registrable

but for section 6(4) of this Act (registration despite certain prior applicationsof design),

the right in the registered design expires when the copyright in that work expires,if that is earlier than the time at which it would otherwise expire, and it may notthereafter be renewed.

(6) The above provisions have effect subject to the proviso to section 4(1) (registrationof same design in respect of other articles, &c.).

Restoration of lapsed right in design.8A (1) Where the right in a registered design has expired by reason of a failure to extend,

in accordance with section 8(2) or (4), the period for which the right subsists, anapplication for the restoration of the right in the design may be made to the registrarwithin the prescribed period.

(2) The application may be made by the person who was the registered proprietor of thedesign or by any other person who would have been entitled to the right in the designif it had not expired; and where the design was held by two or more persons jointly,the application may, with the leave of the registrar, be made by one or more of themwithout joining the others.

(3) Notice of the application shall be published by the registrar in the prescribed manner.

(4) If the registrar is satisfied that the proprietor took reasonable care to see that theperiod for which the right subsisted was extended in accordance with section 8(2) or




(4), he shall, on payment of any unpaid renewal fee and any prescribed additionalfee, order the restoration of the right in the design.

(5) The order may be made subject to such conditions as the registrar thinks fit, and ifthe proprietor of the design does not comply with any condition the registrar mayrevoke the order and give such consequential directions as he thinks fit.

(6) Rules altering the period prescribed for the purposes of subsection (1) may containsuch transitional provisions and savings as appear to the Secretary of State to benecessary or expedient.

Effect of order for restoration of right.8B (1) The effect of an order under section 8A for the restoration of the right in a registered

design is as follows.

(2) Anything done under or in relation to the right during the period between expiry andrestoration shall be treated as valid.

(3) Anything done during that period which would have constituted an infringement ifthe right had not expired shall be treated as an infringement—

(a) if done at a time when it was possible for an application for extension to bemade under section 8(4); or


(4) If after it was no longer possible for such an application for extension to be made,and before publication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted aninfringement of the right in the design if it had not expired, or

(b) made in good faith effective and serious preparations to do such an act,he has the right to continue to do the act or, as the case may be, to do the act,notwithstanding the restoration of the right in the design; but this does not extend togranting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of a business, theperson entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the time being inthat business, and

(b) assign that right, or transmit it on death (or in the case of a body corporateon its dissolution), to any person who acquires that part of the business inthe course of which the act was done or the preparations were made.

(6) Where an article is disposed of to another in exercise of the rights conferred bysubsection (4) or subsection (5), that other and any person claiming through him maydeal with the article in the same way as if it had been disposed of by the registeredproprietor of the design.

(7) The above provisions apply in relation to the use of a registered design for theservices of the Crown as they apply in relation to infringement of the right in thedesign.


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Exemption of innocent infringer from liability for damages.9 (1) In proceedings for the infringement of the right in a registered design damages shall

not be awarded against a defendant who proves that at the date of the infringementhe was not aware, and had no reasonable ground for supposing, that the design wasregistered; and a person shall not be deemed to have been aware or to have hadreasonable grounds for supposing as aforesaid by reason only of the marking of anarticle with the word “registered” or any abbreviation thereof, or any word or wordsexpressing or implying that the design applied to the article has been registered,unless the number of the design accompanied the word or words or the abbreviationin question.

(2) Nothing in this section shall affect the power of the court to grant an injunction inany proceedings for infringement of the right in a registered design.

Compulsory licence in respect of registered design.10 (1) At any time after a design has been registered any person interested may apply to

the registrar for the grant of a compulsory licence in respect of the design on theground that the design is not applied in the United Kingdom by any industrial processor means to the article in respect of which it is registered to such an extent as isreasonable in the circumstances of the case; and the registrar may make such orderon the application as he thinks fit.

(2) An order for the grant of a licence shall, without prejudice to any other method ofenforcement, have effect as if it were a deed executed by the registered proprietorand all other necessary parties, granting a licence in accordance with the order.

(3) No order shall be made under this section which would be at variance with any treaty,convention, arrangement or engagement applying to the United Kingdom and anyconvention country.

(4) An appeal shall lie from any order of the registrar under this section.

Cancellation of registration.11 (1) The registrar may, upon a request made in the prescribed manner by the registered

proprietor, cancel the registration of a design.

(2) At any time after a design has been registered any person interested may apply to theregistrar for the cancellation of the registration of the design on the ground that thedesign was not, at the date of the registration thereof, new..., or on any other groundon which the registrar could have refused to register the design; and the registrar maymake such order on the application as he thinks fit.

(3) At any time after a design has been registered, any person interested may apply tothe registrar for the cancellation of the registration on the ground that—

(a) the design was at the time it was registered a corresponding design in relationto an artistic work in which copyright subsisted, and

(b) the right in the registered design has expired in accordance with section 8(4)of this Act (expiry of right in registered design on expiry of copyright inartistic work);

and the registrar may make such order on the application as he thinks fit.

(4) A cancellation under this section takes effect—




(a) in the case of cancellation under subsection (1), from the date of theregistrar’s decision,

(b) in the case of cancellation under subsection (2), from the date of registration,(c) in the case of cancellation under subsection (3), from the date on which the

right in the registered design expired,or, in any case, from such other date as the registrar may direct.


Powers exercisable for protection of the public interest.11A (1) Where a report of the Monopolies and Mergers Commission has been laid before

Parliament containing conclusions to the effect—(a) on a monopoly reference, that a monopoly situation exists and facts found

by the Commission operate or may be expected to operate against the publicinterest,

(b) on a merger reference, that a merger situation qualifying for investigationhas been created and the creation of the situation, or particular elements inor consequences of it specified in the report, operate or may be expected tooperate against the public interest,

(c) on a competition reference, that a person was engaged in an anti-competitivepractice which operated or may be expected to operate against the publicinterest, or

(d) on a reference under section 11 of the Competition Act 1980 (reference ofpublic bodies and certain other persons), that a person is pursuing a courseof conduct which operates against the public interest,

the appropriate Minister or Ministers may apply to the registrar to take action underthis section.

(2) Before making an application the appropriate Minister or Ministers shall publish,in such manner as he or they think appropriate, a notice describing the nature ofthe proposed application and shall consider any representations which may be madewithin 30 days of such publication by persons whose interests appear to him or themto be affected.

(3) If on an application under this section it appears to the registrar that the mattersspecified in the Commission’s report as being those which in the Commission’sopinion operate, or operated or may be expected to operate, against the public interestinclude—

(a) conditions in licences granted in respect of a registered design by itsproprietor restricting the use of the design by the licensee or the right of theproprietor to grant other licences, or

(b) a refusal by the proprietor of a registered design to grant licences onreasonable terms,

he may by order cancel or modify any such condition or may, instead or in addition,make an entry in the register to the effect that licences in respect of the design areto be available as of right.

(4) The terms of a licence available by virtue of this section shall, in default of agreement,be settled by the registrar on an application by the person requiring the licence; andterms so settled shall authorise the licensee to do everything which would be aninfringement of the right in the registered design in the absence of a licence.


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(5) Where the terms of a licence are settled by the registrar, the licence has effect fromthe date on which the application to him was made.


(7) In this section “the appropriate Minister or Ministers” means the Minister orMinisters to whom the report of the Monopolies and Mergers Commission was made.

Undertaking to take licence of right in infringement proceedings.11B (1) If in proceedings for infringement of the right in a registered design in respect of

which a licence is available as of right under section 11A of this Act the defendantundertakes to take a licence on such terms as may be agreed or, in default ofagreement, settled by the registrar under that section—

(a) no injunction shall be granted against him, and(b) the amount recoverable against him by way of damages or on an account of




Use for services of the Crown.12 The provisions of the First Schedule to this Act shall have effect with respect to

the use of registered designs for the services of the Crown and the rights of thirdparties in respect of such use.

International Arrangements

Orders in Council as to convention countries.13 (1) His Majesty may, with a view to the fulfilment of a treaty, convention, arrangement

or engagement, by Order in Council declare that any country specified in the Orderis a convention country for the purposes of this Act:

Provided that a declaration may be made as aforesaid for the purposes either of allor of some only of the provisions of this Act, and a country in the case of which adeclaration made for the purposes of some only of the provisions of this Act is inforce shall be deemed to be a convention country for the purposes of those provisionsonly.

(2) His Majesty may by Order in Council direct that any of the Channel Islands, anycolony,... shall be deemed to be a convention country for the purposes of all or any ofthe provisions of this Act; and an Order made under this subsection may direct thatany such provisions shall have effect, in relation to the territory in question, subjectto such conditions or limitations, if any, as may be specified in the Order.

(3) For the purposes of subsection (1) of this section, every colony, protectorate,territory subject to the authority or under the suzerainty of another country, and




territory administered by another country... under the trusteeship system of the UnitedNations, shall be deemed to be a country in the case of which a declaration may bemade under that subsection.

Registration of design where application for protection in convention country has been made.14 (1) An application for registration of a design in respect of which protection has been

applied for in a convention country may be made in accordance with the provisionsof this Act by the person by whom the application for protection was made or hispersonal representative or assignee:

Provided that no application shall be made by virtue of this section after theexpiration of six months from the date of the application for protection in aconvention country or, where more than one such application for protection has beenmade, from the date of the first application.

(2) Where an application for registration of a design is made by virtue of this section, theapplication shall be treated, for the purpose of determining whether that or any otherdesign is new, as made on the date of the application for protection in the conventioncountry or, if more than one such application was made, on the date of the first suchapplication.

(3) Subsection (2) shall not be construed as excluding the power to give directions undersection 3(4) of this Act in relation to an application made by virtue of this section.

(4) Where a person has applied for protection for a design by an application which—(a) in accordance with the terms of a treaty subsisting between two or more

convention countries, is equivalent to an application duly made in any oneof those convention countries; or

(b) in accordance with the law of any convention country, is equivalent to anapplication duly made in that convention country,

he shall be deemed for the purposes of this section to have applied in that conventioncountry.

Extension of time for applications under s.14 in certain cases.15 (1) If the Secretary of State is satisfied that provision substantially equivalent to the

provision to be made by or under this section has been or will be made under the lawof any convention country, he may make rules empowering the registrar to extendthe time for making application under subsection (1) of section 14 of this Act forregistration of a design in respect of which protection has been applied for in thatcountry in any case where the period specified in the proviso to that subsectionexpires during a period prescribed by the rules.

(2) Rules made under this section—(a) may, where any agreement or arrangement has been made between His

Majesty’s Government in the United Kingdom and the government of theconvention country for the supply or mutual exchange of information orarticles, provide, either generally or in any class of case specified in therules, that an extension of time shall not be granted under this section unlessthe design has been communicated in accordance with the agreement orarrangement;

(b) may, either generally or in any class of case specified in the rules, fix themaximum extension which may be granted under this section;


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(c) may prescribe or allow any special procedure in connection with applicationsmade by virtue of this section;

(d) may empower the registrar to extend, in relation to an application made byvirtue of this section, the time limited by or under the foregoing provisionsof this Act for doing any act, subject to such conditions, if any, as may beimposed by or under the rules;

(e) may provide for securing that the rights conferred by registration on anapplication made by virtue of this section shall be subject to such restrictionsor conditions as may be specified by or under the rules and in particular torestrictions and conditions for the protection of persons (including personsacting on behalf of His Majesty) who, otherwise than as the result of acommunication made in accordance with such an agreement or arrangementas is mentioned in paragraph (a) of this subsection, and before the date ofthe application in question or such later date as may be allowed by the rules,may have imported or made articles to which the design is applied or mayhave made any application for registration of the design.

Protection of designs communicated under international agreements.16 (1) Subject to the provisions of this section, the Secretary of State may make rules

for securing that, where a design has been communicated in accordance with anagreement or arrangement made between His Majesty’s Government in the UnitedKingdom and the government of any other country for the supply or mutual exchangeof information or articles,—

(a) an application for the registration of the design made by the person fromwhom the design was communicated or his personal representative orassignee shall not be prejudiced, and the registration of the design inpursuance of such an application shall not be invalidated, by reason onlythat the design has been communicated as aforesaid or that in consequencethereof—

(i) the design has been published or applied, or(ii) an application for registration of the design has been made by

any other person, or the design has been registered on such anapplication;

(b) any application for the registration of a design made in consequence of such acommunication as aforesaid may be refused and any registration of a designmade on such an application may be cancelled.

(2) Rules made under subsection (1) of this section may provide that the publicationor application of a design, or the making of any application for registration thereofshall, in such circumstances and subject to such conditions or exceptions as maybe prescribed by the rules, be presumed to have been in consequence of such acommunication as is mentioned in that subsection.

(3) The powers of the Secretary of State under this section, so far as they are exercisablefor the benefit of persons from whom designs have been communicated to HisMajesty’s Government in the United Kingdom by the government of any othercountry, shall only be exercised if and to the extent that the Secretary of State issatisfied that substantially equivalent provision has been or will be made underthe law of that country for the benefit of persons from whom designs havebeen communicated by His Majesty’s Government in the United Kingdom to thegovernment of that country.




(4) References in the last foregoing subsection to the communication of a design toor by His Majesty’s Government or the government of any other country shall beconstrued as including references to the communication of the design by or to anyperson authorised in that behalf by the government in question.

Register of designs, etc.

Register of designs.17 (1) The registrar shall maintain the register of designs, in which shall be entered—

(a) the names and addresses of proprietors of registered designs;(b) notices of assignments and of transmissions of registered designs; and(c) such other matters as may be prescribed or as the registrar may think fit.

(2) No notice of any trust, whether express, implied or constructive, shall be entered inthe register of designs, and the registrar shall not be affected by any such notice.

(3) The register need not be kept in documentary form.

(4) Subject to the provisions of this Act and to rules made by the Secretary of Stateunder it, the public shall have a right to inspect the register at the Patent Office atall convenient times.

(5) Any person who applies for a certified copy of an entry in the register or a certifiedextract from the register shall be entitled to obtain such a copy or extract on paymentof a fee prescribed in relation to certified copies and extracts; and rules made by theSecretary of State under this Act may provide that any person who applies for anuncertified copy or extract shall be entitled to such a copy or extract on payment ofa fee prescribed in relation to uncertified copies and extracts.

(6) Applications under subsection (5) above or rules made by virtue of that subsectionshall be made in such manner as may be prescribed.

(7) In relation to any portion of the register kept otherwise than in documentary form—(a) the right of inspection conferred by subsection (4) above is a right to inspect

the material on the register; and(b) the right to a copy or extract conferred by subsection (5) above or rules is

a right to a copy or extract in a form in which it can be taken away and inwhich it is visible and legible.

(8) Subject to subsection (11) below, the register shall be prima facie evidence ofanything required or authorised to be entered in it and in Scotland shall be sufficientevidence of any such thing.

(9) A certificate purporting to be signed by the registrar and certifying that any entrywhich he is authorised by or under this Act to make has or has not been made, orthat any other thing which he is so authorised to do has or has not been done, shallbe prima facie evidence, and in Scotland shall be sufficient evidence, of the mattersso certified.

(10) Each of the following—(a) a copy of an entry in the register or an extract from the register which is

supplied under subsection (5) above;


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(b) a copy or any representation, specimen or document kept in the Patent Officeor an extract from any such document,

which purports to be a certified copy or certified extract shall, subject tosubsection (11) below, be admitted in evidence without further proof and withoutproduction of any original; and in Scotland such evidence shall be sufficientevidence.

(11) In the application of this section to England and Wales nothing in it shall be takenas detracting from section 69 or 70 of the Police and Criminal Evidence Act 1984 orany provision made by virtue of either of them.

(12) In this section “certified copy” and “certified extract” means a copy and extractcertified by the registrar and sealed with the seal of the Patent Office.

Certificate of registration.18 (1) The registrar shall grant a certificate of registration in the prescribed form to the

registered proprietor of a design when the design is registered.

(2) The registrar may, in a case where he is satisfied that the certificate of registration hasbeen lost or destroyed, or in any other case in which he thinks it expedient, furnishone or more copies of the certificate.

Registration of assignments, etc.19 (1) Where any person becomes entitled by assignment, transmission or operation of law

to a registered design or to a share in a registered design, or becomes entitled asmortgagee, licensee or otherwise to any other interest in a registered design, he shallapply to the registrar in the prescribed manner for the registration of his title asproprietor or co-proprietor or, as the case may be, of notice of his interest, in theregister of designs.

(2) Without prejudice to the provisions of the foregoing subsection, an application for theregistration of the title of any person becoming entitled by assignment to a registereddesign or a share in a registered design, or becoming entitled by virtue of a mortgage,licence or other instrument to any other interest in a registered design, may be madein the prescribed manner by the assignor, mortgagor, licensor or other party to thatinstrument, as the case may be.

(3) Where application is made under this section for the registration of the title of anyperson, the registrar shall, upon proof of title to his satisfaction—

(a) where that person is entitled to a registered design or a share in a registereddesign, register him in the register of designs as proprietor or co-proprietorof the design, and enter in that register particulars of the instrument or eventby which he derives title; or

(b) where that person is entitled to any other interest in the registered design,enter in that register notice of his interest, with particulars of the instrument(if any) creating it.

(3A) Where design right subsists in a registered design, the registrar shall not register aninterest under subsection (3) unless he is satisfied that the person entitled to thatinterest is also entitled to a corresponding interest in the design right.




(3B) Where design right subsists in a registered design and the proprietor of the registereddesign is also the design right owner, an assignment of the design right shall betaken to be also an assignment of the right in the registered design, unless a contraryintention appears.

(4) Subject to any rights vested in any other person of which notice is entered in theregister of designs, the person or persons registered as proprietor of a registereddesign shall have power to assign, grant licences under, or otherwise deal with thedesign, and to give effectual receipts for any consideration for any such assignment,licence or dealing.

Provided that any equities in respect of the design may be enforced in like manneras in respect of any other personal property.

(5) Except for the purposes of an application to rectify the register under the followingprovisions of this Act, a document in respect of which no entry has been made inthe register of designs under subsection (3) of this section shall not be admitted inany court as evidence of the title of any person to a registered design or share of orinterest in a registered design unless the court otherwise directs.

Rectification of register.20 (1) The court may, on the application of any person aggrieved, order the register of

designs to be rectified by the making of any entry therein or the variation or deletionof any entry therein.

(2) In proceedings under this section the court may determine any question which it maybe necessary or expedient to decide in connection with the rectification of the register.

(3) Notice of any application to the court under this section shall be given in theprescribed manner to the registrar, who shall be entitled to appear and be heard onthe application, and shall appear if so directed by the court.

(4) Any order made by the court under this section shall direct that notice of the ordershall be served on the registrar in the prescribed manner; and the registrar shall, onreceipt of the notice, rectify the register accordingly.

(5) A rectification of the register under this section has effect as follows—(a) an entry made has effect from the date on which it should have been made,(b) an entry varied has effect as if it had originally been made in its varied form,

and(c) an entry deleted shall be deemed never to have had effect,

unless, in any case, the court directs otherwise.

Power to correct clerical errors.21 (1) The registrar may, in accordance with the provisions of this section, correct any error

in an application for the registration or in the representation of a design, or any errorin the register of designs.

(2) A correction may be made in pursuance of this section either upon a request in writingmade by any person interested and accompanied by the prescribed fee, or withoutsuch a request.


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(3) Where the registrar proposes to make any such correction as aforesaid otherwise thanin pursuance of a request made under this section, he shall give notice of the proposalto the registered proprietor or the applicant for registration of the design, as the casemay be, and to any other person who appears to him to be concerned, and shall givethem an opportunity to be heard before making the correction.

Inspection of registered designs.22 (1) Where a design has been registered under this Act, there shall be open to inspection

at the Patent Office on and after the day on which the certificate of registration isissued—


appearance of an article is material (for the purposes of section 1(3) of thisAct).

This subsection has effect subject to the following provisions of this section and toany rules made under section 5(2) of this Act.

(2) In the case of a design registered in respect of an article of any class prescribedfor the purposes of this subsection, no representation, specimen or evidence filedin pursuance of the application shall, until the expiration of such period after theday on which the certificate of registration is issued as may be prescribed in relationto articles of that class, be open to inspection at the Patent Office except by theregistered proprietor, a person authorised in writing by the registered proprietor, ora person authorised by the registrar or by the court:

Provided that where the registrar proposes to refuse an application for the registrationof any other design on the ground that it is the same as the first-mentioned designor differs from that design only in immaterial details or in features which arevariants commonly used in the trade, the applicant shall be entitled to inspect therepresentation or specimen of the first-mentioned design filed in pursuance of theapplication for registration of that design.

(3) In the case of a design registered in respect of an article of any class prescribed for thepurposes of the last foregoing subsection, the representation, specimen or evidenceshall not, during the period prescribed as aforesaid, be inspected by any person byvirtue of this section except in the presence of the registrar or of an officer actingunder him; and except in the case of an inspection authorised by the proviso to thatsubsection, the person making the inspection shall not be entitled to take a copy ofthe representation, specimen or evidence or any part thereof.

(4) Where an application for the registration of a design has been abandoned or refused,neither the application for registration nor any representation, specimen or evidencefiled in pursuance thereof shall at any time be open to inspection at the Patent Officeor be published by the registrar.

Information as to existence of right in registered design.23 On the request of a person furnishing such information as may enable the registrar to

identify the design, and on payment of the prescribed fee, the registrar shall informhim—

(a) whether the design is registered and, if so, in respect of what articles, and




(b) whether any extension of the period of the right in the registered designhas been granted,

and shall state the date of registration and the name and address of the registeredproprietor.

... ... ... ... ... ... ...

Legal proceedings and appeals

Certificate of contested validity of registration.25 (1) If in any proceedings before the court the validity of the registration of a design is

contested, and it is found by the court that the design is validly registered, the courtmay certify that the validity of the registration of the design was contested in thoseproceedings.

(2) Where any such certificate has been granted, then if in any subsequent proceedingsbefore the court for infringement of the right in the registered design or forcancellation of the registration of the design, a final order or judgment is madeor given in favour of the registered proprietor, he shall, unless the court otherwisedirects, be entitled to his costs as between solicitor and client:

Provided that this subsection shall not apply to the costs of any appeal in any suchproceedings as aforesaid.

Remedy for groundless threats of infringement proceedings.26 (1) Where any person (whether entitled to or interested in a registered design or an

application for registration of a design or not) by circulars, advertisements orotherwise threatens any other person with proceedings for infringement of the rightin a registered design, any person aggrieved thereby may bring an action against himfor any such relief as is mentioned in the next following subsection.

(2) Unless in any action brought by virtue of this section the defendant proves that theacts in respect of which proceedings were threatened constitute or, if done, wouldconstitute, an infringement of the right in a registered design the registration ofwhich is not shown by the plaintiff to be invalid, the plaintiff shall be entitled to thefollowing relief, that is to say:—

(a) a declaration to the effect that the threats are unjustifiable;(b) an injunction against the continuance of the threats; and(c) such damages, if any, as he has sustained thereby.

(2A) Proceedings may not be brought under this section in respect of a threat to bringproceedings for an infringement alleged to consist of the making or importing ofanything.

(3) For the avoidance of doubt it is hereby declared that a mere notification that a designis registered does not constitute a threat of proceedings within the meaning of thissection.

The court.27 (1) In this Act “the court” means—


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(a) in England and Wales, the High Court or any patents county court havingjurisdiction by virtue of an order under section 287 of the Copyright, Designsand Patents Act 1988,

(b) in Scotland, the Court of Session, and(c) in Northern Ireland, the High Court.

(2) Provision may be made by rules of court with respect to proceedings in the HighCourt in England and Wales for references and applications under this Act to be dealtwith by such judge of that court as the Lord Chancellor may select for the purpose.

The Appeal Tribunal.28 (1) Any appeal from the registrar under this Act shall lie to the Appeal Tribunal.

(2) The Appeal Tribunal shall consist of—(a) one or more judges of the High Court nominated by the Lord Chancellor, and(b) one judge of the Court of Session nominated by the Lord President of that

Court.

(2A) At any time when it consists of two or more judges, the jurisdiction of the AppealTribunal—

(a) where in the case of any particular appeal the senior of those judges sodirects, shall be exercised in relation to that appeal by both of the judges, or(if there are more than two) by two of them, sitting together, and

(b) in relation to any appeal in respect of which no such direction is given, maybe exercised by any one of the judges;

and, in the exercise of that jurisdiction, different appeals may be heard at the sametime by different judges.

(3) The expenses of the Appeal Tribunal shall be defrayed and the fees to be taken thereinmay be fixed as if the Tribunal were a court of the High Court.

(4) The Appeal Tribunal may examine witnesses on oath and administer oaths for thatpurpose.

(5) Upon any appeal under this Act the Appeal Tribunal may by order award to anyparty such costs or expenses as the Tribunal may consider reasonable and direct howand by what parties the costs or expenses are to be paid; and any such order maybe enforced—

(a) in England and Wales or Northern Ireland, in the same way as an order ofthe High Court;

(b) in Scotland, in the same way as a decree for expenses granted by the Courtof Session.

... ... ... ... ... ... ...

(7) Upon any appeal under this Act the Appeal Tribunal may exercise any power whichcould have been exercised by the registrar in the proceeding from which the appealis brought.

(8) Subject to the foregoing provisions of this section the Appeal Tribunal may makerules for regulating all matters relating to proceedings before it under this Act,including right of audience.




(8A) At any time when the Appeal Tribunal consists of two or more judges, the powerto make rules under subsection (8) of this section shall be exercisable by the seniorof those judges:

Provided that another of those judges may exercise that power if it appears to himthat it is necessary for rules to be made and that the judge (or, if more than one, eachof the judges) senior to him is for the time being prevented by illness, absence orotherwise from making them.

(9) An appeal to the Appeal Tribunal under this Act shall not be deemed to be aproceeding in the High Court.

(10) In this section “the High Court” means the High Court in England and Wales; and forthe purposes of this section the seniority of judges shall be reckoned by reference tothe dates on which they were appointed judges of that court or the Court of Session.

Powers and duties of Registrar

Exercise of discretionary powers of registrar.29 Without prejudice to any provisions of this Act requiring the registrar to hear any

party to proceedings thereunder, or to give to any such party an opportunity to beheard, rules made by the Secretary of State under this Act shall require the registrarto give to any applicant for registration of a design an opportunity to be heard beforeexercising adversely to the applicant any discretion vested in the registrar by orunder this Act.

Costs and security for costs.30 (1) Rules made by the Secretary of State under this Act may make provision empowering

the registrar, in anyproceedings before him under this Act—(a) to award any party such costs as he may consider reasonable, and(b) to direct how and by what parties they are to be paid.

(2) Any such order of the registrar may be enforced—(a) in England and Wales or Northern Ireland, in the same way as an order of

the High Court;(b) in Scotland, in the same way as a decree for expenses granted by the Court

of Session.

(3) Rules made by the Secretary of State under this Act may make provision empoweringthe registrar to require a person, in such cases as may be prescribed, to give securityfor the costs of—

(a) an application for cancellation of the registration of a design,(b) an application for the grant of a licence in respect of a registered design, or(c) an appeal from any decision of the registrar under this Act,

and enabling the application or appeal to be treated as abandoned in default of suchsecurity being given.

Evidence before registrar.31 Rules made by the Secretary of State under this Act may make provision—


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(a) as to the giving of evidence in proceedings before the registrar under thisAct by affidavit or statutory declaration;

(b) conferring on the registrar the powers of an official referee of the SupremeCourt as regards the examination of witnesses on oath and the discoveryand production of documents; and

(c) applying in relation to the attendance of witnesses in proceedings before theregistrar the rules applicable to the attendance of witnesses in proceedingsbefore such a referee.

... ... ... ... ... ... ...

Offences

Offences under s.5.33 (1) If any person fails to comply with any direction given under section five of this

Act or makes or causes to be made an application for the registration of a design incontravention of that section, he shall be guilty of an offence and liable—

(a) on conviction on indictment to imprisonment for a term not exceeding twoyears or a fine, or both;

(b) on summary conviction to imprisonment for a term not exceeding six monthsor a fine not exceeding the statutory maximum, or both.

... ... ... ... ... ... ...

Falsification of register, etc.34 If any person makes or causes to be made a false entry in the register of designs, or

a writing falsely purporting to be a copy of an entry in that register, or produces ortenders or causes to be produced or tendered in evidence any such writing, knowingthe entry or writing to be false, he shall be guilty of an offence and liable—

(a) on conviction on indictment to imprisonment for a term not exceeding twoyears or a fine, or both;

(b) on summary conviction to imprisonment for a term not exceeding sixmonths or a fine not exceeding the statutory maximum, or both.

Fine for falsely representing a design as registered.35 (1) If any person falsely represents that a design applied to any article sold by him is

registered in respect of that article, he shall be liable on summary conviction to a finenot exceeding level 3 on the standard scale; and for the purposes of this provisiona person who sells an article having stamped, engraved or impressed thereon orotherwise applied thereto the word “registered”, or any other word expressing orimplying that the design applied to the article is registered, shall be deemed torepresent that the design applied to the article is registered in respect of that article.

(2) If any person, after the right in a registered design has expired, marks any article towhich the design has been applied with the word “registered”, or any word or wordsimplying that there is a subsisting right in the design under this Act, or causes anysuch article to be so marked, he shall be liable on summary conviction to a fine notexceeding level 1 on the standard scale.




Offence by body corporate: liability of officers.35A (1) Where an offence under this Act committed by a body corporate is proved to have

been committed with the consent or connivance of a director, manager, secretary orother similar officer of the body, or a person purporting to act in any such capacity,he as well as the body corporate is guilty of the offence and liable to be proceededagainst and punished accordingly.


Rules, etc.

General power of Secretary of State to make rules, etc.36 (1) Subject to the provisions of this Act, the Secretary of State may make such rules as he

thinks expedient for regulating the business of the Patent Office in relation to designsand for regulating all matters by this Act placed under the direction or control of theregistrar or the Secretary of State.

(1A) Rules may, in particular, make provision—(a) prescribing the form of applications for registration of designs and of any

representations or specimens of designs or other documents which may befiled at the Patent Office, and requiring copies to be furnished of any suchrepresentations, specimens or documents;

(b) regulating the procedure to be followed in connection with any applicationor request to the registrar or in connection with any proceeding before him,and authorising the rectification of irregularities of procedure;

(c) providing for the appointment of advisers to assist the registrar inproceedings before him;

(d) regulating the keeping of the register of designs;(e) authorising the publication and sale of copies of representations of designs

and other documents in the Patent Office;(f) prescribing anything authorised or required by this Act to be prescribed by

rules.

(1B) The remuneration of an adviser appointed to assist the registrar shall be determinedby the Secretary of State with the consent of the Treasury and shall be defrayed outof money provided by Parliament.

(2) Rules made under this section may provide for the establishment of branch officesfor designs and may authorise any document or thing required by or under this Actto be filed or done at the Patent Office to be filed or done at the branch office atManchester or any other branch office established in pursuance of the rules.

Provisions as to rules and Orders.37 (1) ... ... ... ... ... ... ...

(2) Any rules made by the Secretary of State in pursuance of section 15 or section 16 ofthis Act, and any order made, direction given, or other action taken under the rulesby the registrar, may be made, given or taken so as to have effect as respects things


301



done or omitted to be done on or after such date, whether before or after the cominginto operation of the rules or of this Act, as may be specified in the rules.

(3) Any power to make rules conferred by this Act on the Secretary of State or onthe Appeal Tribunal shall be exercisable by statutory instrument; and the StatutoryInstruments Act 1946 shall apply to a statutory instrument containing rules made bythe Appeal Tribunal in like manner as if the rules had been made by a Minister ofthe Crown.

(4) Any statutory instrument containing rules made by the Secretary of State under thisAct shall be subject to annulment in pursuance of a resolution of either House ofParliament.

(5) Any Order in Council made under this Act may be revoked or varied by a subsequentOrder in Council.

... ... ... ... ... ... ...

Supplemental

Hours of business and excluded days.39 (1) Rules made by the Secretary of State under this Act may specify the hour at which the

Patent Office shall be deemed to be closed on any day for purposes of the transactionby the public of business under this Act or of any class of such business, and mayspecify days as excluded days for any such purposes.

(2) Any business done under this Act on any day after the hour specified as aforesaidin relation to business of that class, or on a day which is an excluded day in relationto business of that class, shall be deemed to have been done on the next followingday not being an excluded day; and where the time for doing anything under this Actexpires on an excluded day, that time shall be extended to the next following day notbeing an excluded day.

Fees.40 There shall be paid in respect of the registration of designs and applications therefor,

and in respect of other matters relating to designs arising under this Act, such feesas may be prescribed by rules made by the Secretary of State with the consent ofthe Treasury.

Service of notices, &c., by post.41 Any notice required or authorised to be given by or under this Act, and any

application or other document so authorised or required to be made or filed, maybe given, made or filed by post.

Annual report of registrar.42 The Comptroller-General of Patents, Designs and Trade Marks shall, in his annual

report with respect to the execution of the Patents Act 1977, include a report withrespect to the execution of this Act as if it formed a part of or was included in thatAct.




Savings.43 (1) Nothing in this Act shall be construed as authorising or requiring the registrar to

register a design the use of which would, in his opinion, be contrary to law ormorality.

(2) Nothing in this Act shall affect the right of the Crown or of any person deriving titledirectly or indirectly from the Crown to sell or use articles forfeited under the lawsrelating to customs or excise.

Interpretation.44 (1) In this Act, except where the context otherwise requires, the following expressions

have the meanings hereby respectively assigned by them, that is to say—“Appeal Tribunal” means the Appeal Tribunal constituted and acting in

accordance with section 28 of this Act as amended by the Administration ofJustice Act 1969;

“article” means any article of manufacture and includes any part of anarticle if that part is made and sold separately;

“artistic work” has the same meaning as in Part I of the Copyright, Designsand Patents Act 1988;

“assignee” includes the personal representative of a deceased assignee,and references to the assignee of any person include references to theassignee of the personal representative or assignee of that person;

“author”, in relation to a design, has the meaning given by section 2(3)and (4);

... ... ... ... ... ... ...“corresponding design”, in relation to an artistic work, means a design

which if applied to an article would produce something which would betreated for the purposes of Part I of the Copyright, Designs and Patents Act1988 as a copy of that work;

“the court” shall be construed in accordance with section 27 of this Act;“design” has the meaning assigned to it by section 1(1) of this Act;“employee”, “employment” and “employer” refer to employment under

a contract of service or of apprenticeship;... ... ... ... ... ... ...“prescribed” means prescribed by rules made by the Secretary of State

under this Act;“proprietor” has the meaning assigned to it by section two of this Act;“registered proprietor” means the person or persons for the time being

entered in the register of designs as proprietor of the design;“registrar” means the Comptroller-General of Patents Designs and Trade

Marks;“set of articles” means a number of articles of the same general character

ordinarily on sale or intended to be used together, to each of which the samedesign, or the same design with modifications or variations not sufficient toalter the character or substantially to affect the identity thereof, is applied.

(2) Any reference in this Act to an article in respect of which a design is registered shall,in the case of a design registered in respect of a set of articles, be construed as areference to any article of that set.


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(3) Any question arising under this Act whether a number of articles constitute a set ofarticles shall be determined by the registrar; and notwithstanding anything in this Actany determination of the registrar under this subsection shall be final.

(4) For the purposes of subsection (1) of section 14 and of section 16 of this Act, theexpression “personal representative”, in relation to a deceased person, includes thelegal representative of the deceased appointed in any country outside the UnitedKingdom.

Application to Scotland.45 In the application of this Act to Scotland—

... ... ... ... ... ... ...(3) The expression “injunction” means “interdict”; the expression

“arbitrator”means “arbiter”;the expression “plaintiff” means “pursuer”; the expression “defendant”

means “defender”.

Application to Northern Ireland.46 In the application of this Act to Northern Ireland—

... ... ... ... ... ... ...

(3) References to enactments include enactments comprised in Northern Irelandlegislation:

(3A) References to the Crown include the Crown in right of Her Majesty’s Governmentin Northern Ireland:

(4) References to a government department shall be construed as including referencesto a Northern Ireland department, and in relation to a Northern Ireland departmentreferences to the Treasury shall be construed as references to the Department ofFinance and Personnel.

... ... ... ... ... ... ...

Application to Isle of Man.47 This Act extends to the Isle of Man, subject to any modifications contained in an

Order made by Her Majesty in Council, and accordingly, subject to any such Order,references in this Act to the United Kingdom shall be construed as including theIsle of Man.

Territorial waters and the continental shelf.47A (1) For the purposes of this Act the territorial waters of the United Kingdom shall be

treated as part of the United Kingdom.

(2) This Act applies to things done in the United Kingdom sector of the continental shelfon a structure or vessel which is present there for purposes directly connected withtheexploration of the sea bed or subsoil or the exploitation of their natural resourcesas it applies to things done in the United Kingdom.




(3) The United Kingdom sector of the continental shelf means the areas designated byorder under section 1(7) of the Continental Shelf Act 1964.

Repeals, savings, and transitional provisions.48 (1) ... ... ... ... ... ... ...

(2) Subject to the provisions of this section, any Order in Council, rule,order, requirement, certificate, notice, decision, direction, authorisation, consent,application, request or thing made, issued, given or done under any enactmentrepealed by this Act shall, if in force at the commencement of this Act, and so faras it could have been made, issued, given or done under this Act, continue in forceand have effect as if made, issued, given or done under the corresponding enactmentof this Act.

(3) Any register kept under the Patents and Designs Act 1907 shall be deemed to formpart of the corresponding register under this Act.

(4) Any design registered before the commencement of this Act shall be deemed to beregistered under this Act in respect of articles of the class in which it is registered.

(5) Where, in relation to any design, the time for giving notice to the registrar undersection 59 of the Patents and Designs Act 1907 expired before the commencementof this Act and the notice was not given, subsection (2) of section 6 of this Act shallnot apply in relation to that design or any registration of that design.

(6) Any document referring to any enactment repealed by this Act shall be construed asreferring to the corresponding enactment of this Act.

(7) Nothing in the foregoing provisions of this section shall be taken as prejudicing theoperation of section 38 of the Interpretation Act 1889 (which relates to the effect ofrepeals).

Short title and commencement.49 (1) This Act may be cited as the Registered Designs Act 1949.

(2) This Act shall come into operation on the first day of January, nineteen hundred andfifty, immediately after the coming into operation of the Patents and Designs Act1949.

FIRST SCHEDULE

Provisions as to the Use of Registered Designs for the Services of the Crown and as to the Rightsof Third Parties in Respect of such Use

Use of registered designs for services of the Crown1 (1) Notwithstanding anything in this Act, any Government department, and any person

authorised in writing by a Government department, may use any registered designfor the services of the Crown in accordance with the following provisions of thisparagraph.

(2) If and so far as the design has before the date of registration thereof been dulyrecorded by or applied by or on behalf of a Government department otherwise than


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in consequence of the communication of the design directly or indirectly by theregistered proprietor or any person from whom he derives title, any use of the designby virtue of this paragraph may be made free of any royalty or other payment to theregistered proprietor.

(3) If and so far as the design has not been so recorded or applied as aforesaid, any use ofthe design made by virtue of this paragraph at any time after the date of registrationthereof, or in consequence of any such communication as aforesaid, shall be madeupon such terms as may be agreed upon, either before or after the use, betweenthe Government department and the registered proprietor with the approval of theTreasury, or as may in default of agreement be determined by the court on a referenceunder paragraph 3 of this Schedule.

(4) The authority of a Government department in respect of a design may be given underthis paragraph either before or after the design is registered and either before or afterthe acts in respect of which the authority is given are done, and may be given toany person whether or not he is authorised directly or indirectly by the registeredproprietor to use the design.

(5) Where any use of a design is made by or with the authority of a Governmentdepartment under this paragraph, then, unless it appears to the department that itwould be contrary to the public interest so to do, the department shall notify theregistered proprietor as soon as practicable after the use is begun, and furnish himwith such information as to the extent of the use as he may from time to time require.

(6) For the purposes of this and the next following paragraph “the services of the Crown”shall be deemed to include—

(a) the supply to the government of any country outside the United Kingdom,in pursuance of an agreement or arrangement between Her Majesty’sGovernment in the United Kingdom and the government of that country, ofarticles required—

(i) for the defence of that country; or(ii) for the defence of any other country whose government is party to

any agreement or arrangement with Her Majesty’s said Governmentin respect of defence matters;

(b) the supply to the United Nations, or the government of any country belongingto that organisation, in pursuance of an agreement or arrangement betweenHer Majesty’s Government and that organisation or government, of articlesrequired for any armed forces operating in pursuance of a resolution of thatorganisation or any organ of that organisation;

and the power of a Government department or a person authorised by a Governmentdepartment under this paragraph to use a design shall include power to sell to anysuch government or to the said organisation any articles the supply of which isauthorised by this sub-paragraph, and to sell to any person any articles made in theexercise of the powers conferred by this paragraph which are no longer required forthe purpose for which they were made.

(7) The purchaser of any articles sold in the exercise of powers conferred by thisparagraph, and any person claiming through him, shall have power to deal with themin the same manner as if the rights in the registered design were held on behalf ofHis Majesty.




Rights of third parties in respect of Crown use2 (1) In relation to any use of a registered design, or a design in respect of which an

application for registration is pending, made for the services of the Crown—(a) by a Government department or a person authorised by a Government

department under the last foregoing paragraph; or(b) by the registered proprietor or applicant for registration to the order of a

Government department,the provisions of any licence, assignment or agreement made, whether before or afterthe commencement of this Act, between the registered proprietor or applicant forregistration or any person who derives title from him or from whom he derives titleand any person other than a Government department shall be of no effect so far asthose provisions restrict or regulate the use of the design, or any model, document orinformation relating thereto, or provide for the making of payments in respect of anysuch use, or calculated by reference thereto; and the reproduction or publication ofany model or document in connection with the said use shall not be deemed to be aninfringement of any copyright or design right subsisting in the model or document.

(2) Where an exclusive licence granted otherwise than for royalties or other benefitsdetermined by reference to the use of the design is in force under the registered designthen—

(a) in relation to any use of the design which, but for the provisions of this andthe last foregoing paragraph, would constitute an infringement of the rightsof the licensee, sub-paragraph (3) of the last foregoing paragraph shall haveeffect as if for the reference to the registered proprietor there were substituteda reference to the licensee; and

(b) in relation to any use of the design by the licensee by virtue of an authoritygiven under the last foregoing paragraph, that paragraph shall have effect asif the said sub-paragraph (3) were omitted.

(3) Subject to the provisions of the last foregoing sub-paragraph, where the registereddesign or the right to apply for or obtain registration of the design has been assignedto the registered proprietor in consideration of royalties or other benefits determinedby reference to the use of the design, then—

(a) in relation to any use of the design by virtue of paragraph 1 of this Schedule,sub-paragraph (3) of that paragraph shall have effect as if the referenceto the registered proprietor included a reference to the assignor, and anysum payable by virtue of that sub-paragraph shall be divided between theregistered proprietor and the assignor in such proportion as may be agreedupon between them or as may in default of agreement be determined by thecourt on a reference under the next following paragraph; and

(b) in relation to any use of the design made for the services of the Crownby the registered proprietor to the order of a Government department, sub-paragraph (3) of paragraph 1 of this Schedule shall have effect as if that usewere made by virtue of an authority given under that paragraph.

(4) Where, under sub-paragraph (3) of paragraph 1 of this Schedule, payments arerequired to be made by a Government department to a registered proprietor in respectof any use of a design, any person being the holder of an exclusive licence under theregistered design (not being such a licence as is mentioned in sub-paragraph (2) ofthis paragraph) authorising him to make that use of the design shall be entitled torecover from the registered proprietor such part (if any) of those payments as may beagreed upon between that person and the registered proprietor, or as may in default


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of agreement be determined by the court under the next following paragraph to bejust having regard to any expenditure incurred by that person—

(a) in developing the said design; or(b) in making payments to the registered proprietor, other than royalties or other

payments determined by reference to the use of the design, in considerationof the licence;

and if, at any time before the amount of any such payment has been agreed uponbetween the Government department and the registered proprietor, that person givesnotice in writing of his interest to the department, any agreement as to the amount ofthat payment shall be of no effect unless it is made with his consent.

(5) In this paragraph “exclusive licence” means a licence from a registered proprietorwhich confers on the licensee, or on the licensee and persons authorised by him, tothe exclusion of all other persons (including the registered proprietor), any right inrespect of the registered design.

Compensation for loss of profit2A (1) Where Crown use is made of a registered design, the government department

concerned shall pay—(a) to the registered proprietor, or(b) if there is an exclusive licence in force in respect of the design, to the

exclusive licensee,compensation for any loss resulting from his not being awarded a contract to supplythe articles to which the design is applied.

(2) Compensation is payable only to the extent that such a contract could have beenfulfilled from his existing manufacturing capacity; but is payable notwithstanding theexistence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have beenmade on such a contract and to the extent to which any manufacturing capacity wasunder-used.

(4) No compensation is payable in respect of any failure to secure contracts for the supplyof articles to which the design is applied otherwise than for the services of the Crown.

(5) The amount payable under this paragraph shall, if not agreed between the registeredproprietor or licensee and the government department concerned with the approvalof the Treasury, be determined by the court on a reference under paragraph 3; and itis in addition to any amount payable under paragraph 1 or 2 of this schedule.

(6) In this paragraph—“Crown use”, in relation to a design, means the doing of anything by virtue

of paragraph 1 which would otherwise be an infringement of the right in thedesign; and

“the government department concerned”, in relation to such use, meansthe government department by whom or on whose authority the act was done.

Reference of disputes as to Crown use3 (1) Any dispute as to—




(a) the exercise by a Government department, or a person authorised by aGovernment department, of the powers conferred by paragraph 1 of thisSchedule,

(b) terms for the use of a design for the services of the Crown under thatparagraph,

(c) the right of any person to receive any part of a payment made underparagraph 1(3), or

(d) the right of any person to receive a payment under paragraph 2A,may be referred to the court by either party to the dispute.

(2) In any proceedings under this paragraph to which a Government department are aparty, the department may—

(a) if the registered proprietor is a party to the proceedings, apply forcancellation of the registration of the design upon any ground upon whichthe registration of a design may be cancelled on an application to the courtunder section twenty of this Act;

(b) in any case, put in issue the validity of the registration of the design withoutapplying for its cancellation.

(3) If in such proceedings as aforesaid any question arises whether a design has beenrecorded or applied as mentioned in paragraph 1 of this Schedule, and the disclosureof any document recording the design, or of any evidence of the application thereof,would in the opinion of the department be prejudicial to the public interest, thedisclosure may be made confidentially to counsel for the other party or to anindependent expert mutually agreed upon.

(4) In determining under this paragraph any dispute between a Government departmentand any person as to terms for the use of a design for the services of the Crown,the court shall have regard to any benefit or compensation which that person or anyperson from whom he derives title may have received, or may be entitled to receive,directly or indirectly from any Government department in respect of the design inquestion.

(5) In any proceedings under this paragraph the court may at any time order the wholeproceedings or any question or issue of fact arising therein to be referred to aspecial or official referee or an arbitrator on such terms as the court may direct; andreferences to the court in the foregoing provisions of this paragraph shall be construedaccordingly.

Special provisions as to Crown use during emergency4 (1) During any period of emergency within the meaning of this paragraph, the powers

exercisable in relation to a design by a Government department, or a personauthorised by a Government department under paragraph 1 of this Schedule shallinclude power to use the design for any purpose which appears to the departmentnecessary or expedient—

(a) for the efficient prosecution of any war in which His Majesty may beengaged;

(b) for the maintenance of supplies and services essential to the life of thecommunity;

(c) for securing a sufficiency of supplies and services essential to the well-beingof the community;

Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 5 – Patents: miscellaneous amendmentsDocument Generated: 2020-11-25

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(d) for promoting the productivity of industry, commerce and agriculture;(e) for fostering and directing exports and reducing imports, or imports of any

classes, from all or any countries and for redressing the balance of trade;(f) generally for ensuring that the whole resources of the community are

available for use, and are used, in a manner best calculated to serve theinterests of the community; or

(g) for assisting the relief of suffering and the restoration and distribution ofessential supplies and services in any part of His Majesty’s dominions or anyforeign countries that are in grave distress as the result of war;

and any reference in this Schedule to the services of the Crown shall be construed asincluding a reference to the purposes aforesaid.

(2) In this paragraph the expression “period of emergency” means a period beginningon such date as may be declared by Order in Council to be the commencement, andending on such date as may be so declared to be the termination, of a period ofemergency for the purposes of this paragraph.

(3) No Order in Council under this paragraph shall be submitted to Her Majesty unlessa draft of it has been laid before and approved by a resolution of each House ofParliament.

... ... ... ... ... ... ...


PATENTS: MISCELLANEOUS AMENDMENTS

Withdrawal of application before publication of specification1 In section 13(2) of the M103Patents Act 1949 (duty of comptroller to advertise

acceptance of and publish complete specification) after the word “and”, in the firstplace where it occurs, insert “, unless the application is withdrawn,”.


Correction of clerical errors2 (1) In section 15 of the M104Patents Act 1977 (filing of application), after subsection (3)

insert—

“(3A) Nothing in subsection (2) or (3) above shall be construed as affecting thepower of the comptroller under section 117(1) below to correct errors ormistakes with respect to the filing of drawings.”.

(2) The above amendment applies only in relation to applications filed after thecommencement of this paragraph.


310 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 5 – Patents: miscellaneous amendments




Supplementary searches3 (1) Section 17 of the Patents Act 1977 (preliminary examination and search) is amended

as follows.

(2) In subsection (7) (supplementary searches) for “subsection (4) above” substitute“subsections (4) and (5) above” and for “it applies” substitute “they apply”.

(3) After that subsection add—

“(8) A reference for a supplementary search in consequence of—(a) an amendment of the application made by the applicant under

section 18(3) or 19(1) below, or(b) a correction of the application, or of a document filed in connection

with the application, under section 117 below,shall be made only on payment of the prescribed fee, unless the comptrollerdirects otherwise.”.

4 In section 18 of the Patents Act 1977 (substantive examination and grant or refusalof patent), after subsection (1) insert—

“(1A) If the examiner forms the view that a supplementary search under section 17above is required for which a fee is payable, he shall inform the comptroller,who may decide that the substantive examination should not proceed untilthe fee is paid; and if he so decides, then unless within such period as hemay allow—

(a) the fee is paid, or(b) the application is amended so as to render the supplementary search

unnecessary,he may refuse the application.”.

5 In section 130(1) of the Patents Act 1977 (interpretation), in the definition of“search fee”, for “section 17 above” substitute “section 17(1) above”.

Application for restoration of lapsed patent6 (1) Section 28 of the Patents Act 1977 (restoration of lapsed patents) is amended as

follows.

(2) For subsection (1) (application for restoration within period of one year) substitute—

“(1) Where a patent has ceased to have effect by reason of a failure to pay anyrenewal fee, an application for the restoration of the patent may be made tothe comptroller within the prescribed period.

(1A) Rules prescribing that period may contain such transitional provisions andsavings as appear to the Secretary of State to be necessary or expedient.”.




311



“(2A) Notice of the application shall be published by the comptroller in theprescribed manner.”.

(4) In subsection (3), omit paragraph (b) (requirement that failure to renew is due tocircumstances beyond proprietor’s control) and the word “and” preceding it.

This amendment does not apply to a patent which has ceased to have effect inaccordance with section 25(3) of the M105Patents Act 1977 (failure to renew withinprescribed period) and in respect of which the period referred to in subsection (4)of that section (six months’ period of grace for renewal) has expired beforecommencement.

(5) Omit subsections (5) to (9) (effect of order for restoration).


7 After that section insert—

“28A Effect of order for restoration of patent.“28A “28A Effect of order for restoration of patent.

(1) The effect of an order for the restoration of a patent is as follows.

(2) Anything done under or in relation to the patent during the period betweenexpiry and restoration shall be treated as valid.

(3) Anything done during that period which would have constituted aninfringement if the patent had not expired shall be treated as aninfringement—

(a) if done at a time when it was possible for the patent to be renewedunder section 25(4), or


(4) If after it was no longer possible for the patent to be so renewed, and beforepublication of notice of the application for restoration, a person—

(a) began in good faith to do an act which would have constituted aninfringement of the patent if it had not expired, or

(b) made in good faith effective and serious preparations to do such anact,

he has the right to continue to do the act or, as the case may be, to do the act,notwithstanding the restoration of the patent; but this right does not extendto granting a licence to another person to do the act.

(5) If the act was done, or the preparations were made, in the course of abusiness, the person entitled to the right conferred by subsection (4) may—

(a) authorise the doing of that act by any partners of his for the timebeing in that business, and

(b) assign that right, or transmit it on death (or in the case of a bodycorporate on its dissolution), to any person who acquires that part





of the business in the course of which the act was done or thepreparations were made.

(6) Where a product is disposed of to another in exercise of the rights conferredby subsection (4) or (5), that other and any person claiming through him maydeal with the product in the same way as if it had been disposed of by theregistered proprietor of the patent.

(7) The above provisions apply in relation to the use of a patent for the servicesof the Crown as they apply in relation to infringement of the patent.”.

8 In consequence of the above amendments—(a) in section 60(6)(b) of the M106Patents Act 1977, for “section 28(6)”

substitute “section 28A(4) or (5)”; and(b) in sections 77(5), 78(6) and 80(4) of that Act, for the words from

“section 28(6)” to the end substitute “section 28A(4) and (5) above, andsubsections (6) and (7) of that section shall apply accordingly.”.


Determination of right to patent after grant9 (1) Section 37 of the Patents Act 1977 (determination of right to patent after grant) is

amended as follows.


“(1) After a patent has been granted for an invention any person having orclaiming a proprietary interest in or under the patent may refer to thecomptroller the question—

(a) who is or are the true proprietor or proprietors of the patent,(b) whether the patent should have been granted to the person or persons

to whom it was granted, or(c) whether any right in or under the patent should be transferred or

granted to any other person or persons;and the comptroller shall determine the question and make such order as hethinks fit to give effect to the determination.”.

(3) Substitute “this section”—(a) in subsections (4) and (7) for “subsection (1)(a) above”, and(b) in subsection (8) for “subsection (1) above”.

10 In section 74(6) (meaning of “entitlement proceedings”), for “section 37(1)(a)above” substitute “section 37(1) above”.

Employees’ inventions11 (1) In section 39 of the Patents Act 1977 (right to employees’ inventions), after

subsection (2) add—



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“(3) Where by virtue of this section an invention belongs, as between him andhis employer, to an employee, nothing done—

(a) by or on behalf of the employee or any person claiming under himfor the purposes of pursuing an application for a patent, or

(b) by any person for the purpose of performing or working theinvention,

shall be taken to infringe any copyright or design right to which, as betweenhim and his employer, his employer is entitled in any model or documentrelating to the invention.”.

(2) In section 43 of the M107Patents Act 1977 (supplementary provisions with respectto employees’ inventions), in subsection (4) (references to patents to include otherforms of protection, whether in UK or elsewhere) for “in sections 40 to 42” substitute“in sections 39 to 42.”.


Undertaking to take licence in infringement proceedings12 (1) Section 46 of the Patents Act 1977 (licences of right) is amended as follows.

(2) In subsection (3)(c) (undertaking to take licence in infringement proceedings) afterthe words “(otherwise than by the importation of any article” insert “from a countrywhich is not a member State of the European Economic Community”.


“(3A) An undertaking under subsection (3)(c) above may be given at any timebefore final order in the proceedings, without any admission of liability.”.

Power of comptroller on grant of compulsory licence13 In section 49 of the Patents Act 1977 (supplementary provisions with respect to

compulsory licences), omit subsection (3) (power to order that licence has effectto revoke existing licences and deprive proprietor of power to work invention orgrant licences).

Powers exercisable in consequence of report of Monopolies and Mergers Commission14 For section 51 of the Patents Act 1977 (licences of right: application by Crown in

consequence of report of Monopolies and Mergers Commission) substitute—

“51 Powers exercisable in consequence of report of Monopolies and MergersCommission.“51 “51 Powers exercisable in consequence of report of Monopolies and

Mergers Commission.

(1) Where a report of the Monopolies and Mergers Commission has been laidbefore Parliament containing conclusions to the effect—





(a) on a monopoly reference, that a monopoly situation exists and factsfound by the Commission operate or may be expected to operateagainst the public interest,

(b) on a merger reference, that a merger situation qualifying forinvestigation has been created and the creation of the situation, orparticular elements in or consequences of it specified in the report,operate or may be expected to operate against the public interest,

(c) on a competition reference, that a person was engaged in an anti-competitive practice which operated or may be expected to operateagainst the public interest, or

(d) on a reference under section 11 of the Competition Act 1980(reference of public bodies and certain other persons), that a personis pursuing a course of conduct which operates against the publicinterest,

the appropriate Minister or Ministers may apply to the comptroller to takeaction under this section.

(2) Before making an application the appropriate Minister or Ministers shallpublish, in such manner as he or they think appropriate, a notice describingthe nature of the proposed application and shall consider any representationswhich may be made within 30 days of such publication by persons whoseinterests appear to him or them to be affected.

(3) If on an application under this section it appears to the comptroller that thematters specified in the Commission’s report as being those which in theCommission’s opinion operate, or operated or may be expected to operate,against the public interest include—

(a) conditions in licences granted under a patent by its proprietorrestricting the use of the invention by the licensee or the right of theproprietor to grant other licences, or

(b) a refusal by the proprietor of a patent to grant licences on reasonableterms

he may by order cancel or modify any such condition or may, instead or inaddition, make an entry in the register to the effect that licences under thepatent are to be available as of right.

(4) In this section “the appropriate Minister or Ministers” means the Minister orMinisters to whom the report of the Commission was made.”.

Compulsory licensing: reliance on statements in competition report15 In section 53(2) of the M108Patents Act 1977 (compulsory licensing: reliance on

statements in reports of Monopolies and Mergers Commission)—(a) for “application made in relation to a patent under sections 48 to 51 above”

substitute “application made under section 48 above in respect of a patent”;and

(b) after “Part VIII of the Fair Trading Act 1973” insert “or section 17 of theCompetition Act 1980”.


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Crown use: compensation for loss of profit16 (1) In the Patents Act 1977, after section 57 insert—

“57A Compensation for loss of profit.“57A “57A Compensation for loss of profit.

(1) Where use is made of an invention for the services of the Crown, thegovernment department concerned shall pay—

(a) to the proprietor of the patent, or(b) if there is an exclusive licence in force in respect of the patent, to

the exclusive licensee,compensation for any loss resulting from his not being awarded a contract tosupply the patented product or, as the case may be, to perform the patentedprocess or supply a thing made by means of the patented process.

(2) Compensation is payable only to the extent that such a contract couldhave been fulfilled from his existing manufacturing or other capacity; butis payable notwithstanding the existence of circumstances rendering himineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would havebeen made on such a contract and to the extent to which any manufacturingor other capacity was under-used.

(4) No compensation is payable in respect of any failure to secure contracts tosupply the patented product or, as the case may be, to perform the patentedprocess or supply a thing made by means of the patented process, otherwisethan for the services of the Crown.

(5) The amount payable shall, if not agreed between the proprietor or licenseeand the government department concerned with the approval of the Treasury,be determined by the court on a reference under section 58, and is in additionto any amount payable under section 55 or 57.

(6) In this section “the government department concerned”, in relation to anyuse of an invention for the services of the Crown, means the governmentdepartment by whom or on whose authority the use was made.

(7) In the application of this section to Northern Ireland, the reference insubsection (5) above to the Treasury shall, where the government departmentconcerned is a department of the Government of Northern Ireland, beconstrued as a reference to the Department of Finance and Personnel.”.

(2) In section 58 of the M109Patents Act 1977 (reference of disputes as to Crown use),for subsection (1) substitute—

“(1) Any dispute as to—





(a) the exercise by a government department, or a person authorised bya government department, of the powers conferred by section 55above,

(b) terms for the use of an invention for the services of the Crown underthat section,

(c) the right of any person to receive any part of a payment made inpursuance of subsection (4) of that section, or

(d) the right of any person to receive a payment under section 57A,may be referred to the court by either party to the dispute after a patent hasbeen granted for the invention.”;

and in subsection (4) for “under this section” substitute “under subsection (1)(a), (b)or (c) above”.

(3) In section 58(11) of the Patents Act 1977 (exclusion of right to compensationfor Crown use if relevant transaction, instrument or event not registered), after“section 57(3) above)” insert “, or to any compensation under section 57A above,”.

(4) The above amendments apply in relation to any use of an invention for the servicesof the Crown after the commencement of this section, even if the terms for such usewere settled before commencement.


Right to continue use begun before priority date17 For section 64 of the Patents Act 1977 (right to continue use begun before priority

date) substitute—

“64 Right to continue use begun before priority date.“64 “64 Right to continue use begun before priority date.

(1) Where a patent is granted for an invention, a person who in the UnitedKingdom before the priority date of the invention—

(a) does in good faith an act which would constitute an infringement ofthe patent if it were in force, or

(b) makes in good faith effective and serious preparations to do suchan act,

has the right to continue to do the act or, as the case may be, to do the act,notwithstanding the grant of the patent; but this right does not extend togranting a licence to another person to do the act.

(2) If the act was done, or the preparations were made, in the course of abusiness, the person entitled to the right conferred by subsection (1) may—

(a) authorise the doing of that act by any partners of his for the timebeing in that business, and

(b) assign that right, or transmit it on death (or in the case of a bodycorporate on its dissolution), to any person who acquires that part



317



of the business in the course of which the act was done or thepreparations were made.

(3) Where a product is disposed of to another in exercise of the rights conferredby subsection (1) or (2), that other and any person claiming through him maydeal with the product in the same way as if it had been disposed of by theregistered proprietor of the patent.”.

Revocation on grounds of grant to wrong person18 In section 72(1) of the M110Patents Act 1977 (grounds for revocation of patent), for

paragraph (b) substitute—“(b) that the patent was granted to a person who was not entitled to be

granted that patent;”.


Revocation where two patents granted for same invention19 In section 73 of the Patents Act 1977 (revocation on initiative of comptroller), for

subsections (2) and (3) (revocation of patent where European patent (UK) grantedin respect of same invention) substitute—

“(2) If it appears to the comptroller that a patent under this Act and a Europeanpatent (UK) have been granted for the same invention having the samepriority date, and that the applications for the patents were filed by the sameapplicant or his successor in title, he shall give the proprietor of the patentunder this Act an opportunity of making observations and of amending thespecification of the patent, and if the proprietor fails to satisfy the comptrollerthat there are not two patents in respect of the same invention, or to amendthe specification so as to prevent there being two patents in respect of thesame invention, the comptroller shall revoke the patent.

(3) The comptroller shall not take action under subsection (2) above before—(a) the end of the period for filing an opposition to the European patent

(UK) under the European Patent Convention, or(b) if later, the date on which opposition proceedings are finally

disposed of;and he shall not then take any action if the decision is not to maintain theEuropean patent or if it is amended so that there are not two patents in respectof the same invention.

(4) The comptroller shall not take action under subsection (2) above if theEuropean patent (UK) has been surrendered under section 29(1) abovebefore the date on which by virtue of section 25(1) above the patent underthis Act is to be treated as having been granted or, if proceedings for thesurrender of the European patent (UK) have been begun before that date,until those proceedings are finally disposed of; and he shall not then takeany action if the decision is to accept the surrender of the European patent.”.





Applications and amendments not to include additional matter20 For section 76 of the M111Patents Act 1977 (amendments of applications and patents

not to include added matter) substitute—

“76 Amendments of applications and patents not to include added matter.“76 “76 Amendments of applications and patents not to include added

matter.

(1) An application for a patent which—(a) is made in respect of matter disclosed in an earlier application, or in

the specification of a patent which has been granted, and(b) discloses additional matter, that is, matter extending beyond that

disclosed in the earlier application, as filed, or the application forthe patent, as filed,

may be filed under section 8(3), 12 or 37(4) above, or as mentioned insection 15(4) above, but shall not be allowed to proceed unless it is amendedso as to exclude the additional matter.

(2) No amendment of an application for a patent shall be allowed undersection 17(3), 18(3) or 19(1) if it results in the application disclosing matterextending beyond that disclosed in the application as filed.

(3) No amendment of the specification of a patent shall be allowed undersection 27(1), 73 or 75 if it—

(a) results in the specification disclosing additional matter, or(b) extends the protection conferred by the patent.”.


Effect of European patent (UK)21 (1) Section 77 of the Patents Act 1977 (effect of European patent (UK)) is amended as

follows.

(2) For subsection (3) (effect of finding of partial validity on pending proceedings)substitute—

“(3) Where in the case of a European patent (UK)—(a) proceedings for infringement, or proceedings under section 58

above, have been commenced before the court or the comptrollerand have not been finally disposed of, and

(b) it is established in proceedings before the European Patent Officethat the patent is only partially valid,

the provisions of section 63 or, as the case may be, of subsections (7) to (9)of section 58 apply as they apply to proceedings in which the validity of apatent is put in issue and in which it is found that the patent is only partiallyvalid.”.



319



(3) For subsection (4) (effect of amendment or revocation under European PatentConvention) substitute—

“(4) Where a European patent (UK) is amended in accordance with the EuropeanPatent Convention, the amendment shall have effect for the purposes of PartsI and III of this Act as if the specification of the patent had been amendedunder this Act; but subject to subsection (6)(b) below.

(4A) Where a European patent (UK) is revoked in accordance with the EuropeanPatent Convention, the patent shall be treated for the purposes of Parts I andIII of this Act as having been revoked under this Act.”.

(4) In subsection (6) (filing of English translation), in paragraph (b) (amendments) for“a translation of the amendment into English” substitute “a translation into Englishof the specification as amended”.

(5) In subsection (7) (effect of failure to file translation) for the words from “atranslation” to “above” substitute “such a translation is not filed”.

The state of the art: material contained in patent applications22 In section 78 of the M112Patents Act 1977 (effect of filing an application for a

European patent (UK)), for subsection (5) (effect of withdrawal of application, &c.)substitute—

“(5) Subsections (1) to (3) above shall cease to apply to an application for aEuropean patent (UK), except as mentioned in subsection (5A) below, if—

(a) the application is refused or withdrawn or deemed to be withdrawn,or

(b) the designation of the United Kingdom in the application iswithdrawn or deemed to be withdrawn,

but shall apply again if the rights of the applicant are re-established underthe European Patent Convention, as from their re-establishment.

(5A) The occurrence of any of the events mentioned in subsection (5)(a) or (b)shall not affect the continued operation of section 2(3) above in relation tomatter contained in an application for a European patent (UK) which byvirtue of that provision has become part of the state of the art as regards otherinventions.”.


Jurisdiction in certain proceedings23 Section 88 of the Patents Act 1977 (jurisdiction in legal proceedings in connection

with Community Patent Convention) is repealed.

Effect of filing international application for patent24 (1) Section 89 of the Patents Act 1977 (effect of filing international application for

patent) is amended as follows.






“(3A) If the relevant conditions are satisfied with respect to an application whichis amended in accordance with the Treaty and the relevant conditions arenot satisfied with respect to any amendment, that amendment shall bedisregarded.”.


“(4A) In subsection (4)(a) “a copy of the application” includes a copy of theapplication published in accordance with the Treaty in a language other thanthat in which it was filed.”.

(4) For subsection (10) (exclusion of certain applications subject to European PatentConvention) substitute—

“(10) The foregoing provisions of this section do not apply to an application whichfalls to be treated as an international application for a patent (UK) by reasononly of its containing an indication that the applicant wishes to obtain aEuropean patent (UK); but without prejudice to the application of thoseprovisions to an application which also separately designates the UnitedKingdom.”.

(5) The amendments in this paragraph shall be deemed always to have had effect.

(6) This paragraph shall be repealed by the order bringing the following paragraph intoforce.

25 For section 89 of the M113Patents Act 1977 (effect of filing international applicationfor patent) substitute—

“89 Effect of international application for patent.“89 “89 Effect of international application for patent.

(1) An international application for a patent (UK) for which a date of filing hasbeen accorded under the Patent Co-operation Treaty shall, subject to—

section 89A (international and national phases of application), andsection 89B (adaptation of provisions in relation to internationalapplication),

be treated for the purposes of Parts I and III of this Act as an application fora patent under this Act.

(2) If the application, or the designation of the United Kingdom in it, iswithdrawn or (except as mentioned in subsection (3)) deemed to bewithdrawn under the Treaty, it shall be treated as withdrawn under this Act.

(3) An application shall not be treated as withdrawn under this Act if it, or thedesignation of the United Kingdom in it, is deemed to be withdrawn underthe Treaty—

(a) because of an error or omission in an institution having functionsunder the Treaty, or

(b) because, owing to circumstances outside the applicant’s control, acopy of the application was not received by the International Bureaubefore the end of the time limited for that purpose under the Treaty,


321



or in such other circumstances as may be prescribed.

(4) For the purposes of the above provisions an application shall not be treated asan international application for a patent (UK) by reason only of its containingan indication that the applicant wishes to obtain a European patent (UK), butan application shall be so treated if it also separately designates the UnitedKingdom.

(5) If an international application for a patent which designates the UnitedKingdom is refused a filing date under the Treaty and the comptrollerdetermines that the refusal was caused by an error or omission in aninstitution having functions under the Treaty, he may direct that theapplication shall be treated as an application under this Act, having such dateof filing as he may direct.

89A International and national phases of application.89A 89A International and national phases of application.

(1) The provisions of the Patent Co-operation Treaty relating to publication,search, examination and amendment, and not those of this Act, apply to aninternational application for a patent (UK) during the international phase ofthe application.

(2) The international phase of the application means the period from the filingof the application in accordance with the Treaty until the national phase ofthe application begins.

(3) The national phase of the application begins—(a) when the prescribed period expires, provided any necessary

translation of the application into English has been filed at the PatentOffice and the prescribed fee has been paid by the applicant; or

(b) on the applicant expressly requesting the comptroller to proceedearlier with the national phase of the application, filing at the PatentOffice—

(i) a copy of the application, if none has yet been sent to thePatent Office in accordance with the Treaty, and

(ii) any necessary translation of the application into English,and paying the prescribed fee.

For this purpose a “copy of the application” includes a copy published inaccordance with the Treaty in a language other than that in which it wasoriginally filed.

(4) If the prescribed period expires without the conditions mentioned insubsection (3)(a) being satisfied, the application shall be taken to bewithdrawn.

(5) Where during the international phase the application is amended inaccordance with the Treaty, the amendment shall be treated as made underthis Act if—

(a) when the prescribed period expires, any necessary translation of theamendment into English has been filed at the Patent Office, or




(b) where the applicant expressly requests the comptroller to proceedearlier with the national phase of the application, there is then filedat the Patent Office—

(i) a copy of the amendment, if none has yet been sent to thePatent Office in accordance with the Treaty, and

(ii) any necessary translation of the amendment into English;otherwise the amendment shall be disregarded.

(6) The comptroller shall on payment of the prescribed fee publish anytranslation filed at the Patent Office under subsection (3) or (5) above.

89B Adaptation of provisions in relation to international application.89B 89B Adaptation of provisions in relation to international application.

(1) Where an international application for a patent (UK) is accorded a filing dateunder the Patent Co-operation Treaty—

(a) that date, or if the application is re-dated under the Treaty to alater date that later date, shall be treated as the date of filing theapplication under this Act,

(b) any declaration of priority made under the Treaty shall be treated asmade under section 5(2) above, and where in accordance with theTreaty any extra days are allowed, the period of 12 months specifiedin section 5(2) shall be treated as altered accordingly, and

(c) any statement of the name of the inventor under the Treaty shall betreated as a statement filed under section 13(2) above.

(2) If the application, not having been published under this Act, is published inaccordance with the Treaty it shall be treated, for purposes other than thosementioned in subsection (3), as published under section 16 above when theconditions mentioned in section 89A(3)(a) are complied with.

(3) For the purposes of section 55 (use of invention for service of the Crown) andsection 69 (infringement of rights conferred by publication) the application,not having been published under this Act, shall be treated as published undersection 16 above—

(a) if it is published in accordance with the Treaty in English, on itsbeing so published; and

(b) if it is so published in a language other than English—(i) on the publication of a translation of the application in

accordance with section 89A(6) above, or(ii) on the service by the applicant of a translation into English

of the specification of the application on the governmentdepartment concerned or, as the case may be, on the personcommitting the infringing act.

The reference in paragraph (b)(ii) to the service of a translation ona government department or other person is to its being sent by postor delivered to that department or person.

(4) During the international phase of the application, section 8 above does notapply (determination of questions of entitlement in relation to applicationunder this Act) and section 12 above (determination of entitlement in relation


323



to foreign and convention patents) applies notwithstanding the application;but after the end of the international phase, section 8 applies and section 12does not.

(5) When the national phase begins the comptroller shall refer the applicationfor so much of the examination and search under section 17 and 18 aboveas he considers appropriate in view of any examination or search carried outunder the Treaty.”.


Proceedings before the court or the comptroller26 In the M114Patents Act 1977, after section 99 (general powers of the court) insert—

“99A Power of Patents Court to order report.“99A “99A Power of Patents Court to order report.

(1) Rules of court shall make provision empowering the Patents Court in anyproceedings before it under this Act, on or without the application of anyparty, to order the Patent Office to inquire into and report on any questionof fact or opinion.

(2) Where the court makes such an order on the application of a party, the feepayable to the Patent Office shall be at such rate as may be determined inaccordance with rules of court and shall be costs of the proceedings unlessotherwise ordered by the court.

(3) Where the court makes such an order of its own motion, the fee payable tothe Patent Office shall be at such rate as may be determined by the LordChancellor with the approval of the Treasury and shall be paid out of moneyprovided by Parliament.

99B Power of Court of Session to order report.99B 99B Power of Court of Session to order report.

(1) In any proceedings before the Court of Session under this Act the court may,either of its own volition or on the application of any party, order the PatentOffice to inquire into and report on any question of fact or opinion.

(2) Where the court makes an order under subsection (1) above of its ownvolition the fee payable to the Patent Office shall be at such rate as may bedetermined by the Lord President of the Court of Session with the consent ofthe Treasury and shall be defrayed out of moneys provided by Parliament.

(3) Where the court makes an order under subsection (1) above on theapplication of a party, the fee payable to the Patent Office shall be at suchrate as may be provided for in rules of court and shall be treated as expensesin the cause.”.






27 For section 102 of the M115Patents Act 1977 (right of audience in patent proceedings)substitute—

“102 Right of audience, &c. in proceedings before comptroller.“102 “102 Right of audience, &c. in proceedings before comptroller.

(1) A party to proceedings before the comptroller under this Act, or under anytreaty or international convention to which the United Kingdom is a party,may appear before the comptroller in person or be represented by any personwhom he desires to represent him.

(2) No offence is committed under the enactments relating to the preparation ofdocuments by persons not legally qualified by reason only of the preparationby any person of a document, other than a deed, for use in such proceedings.

(3) Subsection (1) has effect subject to rules made under section 281 of theCopyright, Designs and Patents Act 1988 (power of comptroller to refuse torecognise certain agents).

(4) In its application to proceedings in relation to applications for, or otherwisein connection with, European patents, this section has effect subject to anyrestrictions imposed by or under the European Patent Convention.

102A Right of audience, &c. in proceedings on appeal from the comptroller.102A 102A Right of audience, &c. in proceedings on appeal from the

comptroller.

(1) A solicitor of the Supreme Court may appear and be heard on behalf of anyparty to an appeal under this Act from the comptroller to the Patents Court.

(2) A registered patent agent or a member of the Bar not in actual practice maydo, in or in connection with proceedings on an appeal under this Act from thecomptroller to the Patents Court, anything which a solicitor of the SupremeCourt might do, other than prepare a deed.

(3) The Lord Chancellor may by regulations—(a) provide that the right conferred by subsection (2) shall be subject to

such conditions and restrictions as appear to the Lord Chancellor tobe necessary or expedient, and

(b) apply to persons exercising that right such statutory provisions, rulesof court and other rules of law and practice applying to solicitors asmay be specified in the regulations;

and different provision may be made for different descriptions ofproceedings.

(4) Regulations under this section shall be made by statutory instrument whichshall be subject to annulment in pursuance of a resolution of either Houseof Parliament.



325



(5) This section is without prejudice to the right of counsel to appear before theHigh Court.”.


Provision of information28 In section 118 of the M116Patents Act 1977 (information about patent applications,

&c.), in subsection (3) (restriction on disclosure before publication of application:exceptions) for “section 22(6)(a) above” substitute “section 22(6) above”.


Power to extend time limits29 In section 123 of the Patents Act 1977 (rules), after subsection (3) insert—

“(3A) It is hereby declared that rules—(a) authorising the rectification of irregularities of procedure, or(b) providing for the alteration of any period of time,

may authorise the comptroller to extend or further extend any periodnotwithstanding that the period has already expired.”.

Availability of samples of micro-organisms30 In the Patents Act 1977 after section 125 insert—

“125A Disclosure of invention by specification: availability of samples ofmicro-organisms.“125A “125A Disclosure of invention by specification: availability of samples

of micro-organisms.

(1) Provision may be made by rules prescribing the circumstances in which thespecification of an application for a patent, or of a patent, for an inventionwhich requires for its performance the use of a micro-organism is to betreated as disclosing the invention in a manner which is clear enough andcomplete enough for the invention to be performed by a person skilled inthe art.

(2) The rules may in particular require the applicant or patentee—(a) to take such steps as may be prescribed for the purposes of making

available to the public samples of the micro-organism, and(b) not to impose or maintain restrictions on the uses to which such

samples may be put, except as may be prescribed.



326 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 5A – PERMITTED ACTS TO WHICH SECTION 296ZE APPLIES



(3) The rules may provide that, in such cases as may be prescribed, samples needonly be made available to such persons or descriptions of persons as may beprescribed; and the rules may identify a description of persons by referenceto whether the comptroller has given his certificate as to any matter.

(4) An application for revocation of the patent under section 72(1)(c) above maybe made if any of the requirements of the rules cease to be complied with.”.


[F120SCHEDULE 5A Section 296ZE

PERMITTED ACTS TO WHICH SECTION 296ZE APPLIES

Textual AmendmentsF120 Sch. 5A inserted (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 24(2), Sch. 3 (with regs. 31-40)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .


PROVISIONS FOR THE BENEFIT OF THE HOSPITAL FOR SICK CHILDREN

Interpretation

1 (1) In this Schedule—“the Hospital” means The Hospital for Sick Children, Great Ormond

Street, London,“the trustees” means the special trustees appointed for the Hospital under

the M117National Health Service Act 1977; and“the work” means the play “Peter Pan" by Sir James Matthew Barrie.

(2) Expressions used in this Schedule which are defined for the purposes of Part I of thisAct (copyright) have the same meaning as in that Part.


http://www.legislation.gov.uk/id/ukpga/1988/48/schedule/5A







Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 6 – Provisions for the Benefit of the Hospital for Sick ChildrenDocument Generated: 2020-11-25

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Entitlement to royalty

2 (1) The trustees are entitled, subject to the following provisions of this Schedule, to aroyalty in respect of any public performance, commercial publication, broadcastingor inclusion in a cable programme service of the whole or any substantial part of thework or an adaptation of it.

(2) Where the trustees are or would be entitled to a royalty, another form of remunerationmay be agreed.

Exceptions3 No royalty is payable in respect of—

(a) anything which immediately before copyright in the work expired on 31stDecember 1987 could lawfully have been done without the licence, orfurther licence, of the trustees as copyright owners; or

(b) anything which if copyright still subsisted in the work could, by virtueof any provision of Chapter III of Part I of this Act (acts permittednotwithstanding copyright), be done without infringing copyright.

Saving4 No royalty is payable in respect of anything done in pursuance of arrangements

made before the passing of this Act.

Procedure for determining amount payable

5 (1) In default of agreement application may be made to the Copyright Tribunal whichshall consider the matter and make such order regarding the royalty or otherremuneration to be paid as it may determine to be reasonable in the circumstances.

(2) Application may subsequently be made to the Tribunal to vary its order, and theTribunal shall consider the matter and make such order confirming or varying theoriginal order as it may determine to be reasonable in the circumstances.

(3) An application for variation shall not, except with the special leave of the Tribunal,be made within twelve months from the date of the original order or of the order ona previous application for variation.

(4) A variation order has effect from the date on which it is made or such later date asmay be specified by the Tribunal.

Sums received to be held on trust6 The sums received by the trustees by virtue of this Schedule, after deduction of any

relevant expenses, shall be held by them on trust for the purposes of the Hospital.

328 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 7 – Consequential amendments: general



Right only for the benefit of the Hospital

7 (1) The right of the trustees under this Schedule may not be assigned and shall cease ifthe trustees purport to assign or charge it.

(2) The right may not be the subject of an order under section 92 of the M118NationalHealth Service Act 1977 (transfers of trust property by order of the Secretary of State)and shall cease if the Hospital ceases to have a separate identity or ceases to havepurposes which include the care of sick children.

(3) Any power of Her Majesty, the court (within the meaning of the M119Charities Act1960) or any other person to alter the trusts of a charity is not exercisable in relationto the trust created by this Schedule.


SCHEDULE 7 Section 303(1).

CONSEQUENTIAL AMENDMENTS: GENERAL

British Mercantile Marine Uniform Act 1919 (c.62)1 For section 2 of the British Mercantile Marine Uniform Act 1919 (copyright in

distinctive marks of uniform) substitute—

“2 Right in registered design of distinctive marks of uniform.“2 “2 Right in registered design of distinctive marks of uniform.

The right of the Secretary of State in any design forming part of the Britishmercantile marine uniform which is registered under the Registered DesignsAct 1949 is not limited to the period prescribed by section 8 of that Act butshall continue to subsist so long as the design remains on the register.”.

Chartered Associations (Protection of Names and Uniforms) Act 1926 (c.26)2 In section 1(5) of the Chartered Associations (Protection of Names and Uniforms)

Act 1926 for “the copyright in respect thereof” substitute “ the right in the registereddesign ”.

Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939 (c.107)3 (1) The Patents, Designs, Copyright and Trade Marks (Emergency) Act 1939 is amended

as follows.

(2) In section 1 (effect of licence where owner is enemy or enemy subject)—



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(a) in subsection (1) after “a copyright” and “the copyright” insert “ or designright ”;

(b) in subsection (2) after “the copyright” insert “ or design right ” and for “orcopyright” substitute “ , copyright or design right ”.

(3) In section 2 (power of comptroller to grant licences)—(a) in subsection (1) after “a copyright”, “the copyright” (twice) and “the said

copyright” insert “ or design right ” and for “or copyright” (twice) substitute“ , copyright or design right ”;

(b) in subsections (2) and (3) for “, or copyright” substitute “ , copyright ordesign right ”;

(c) in subsection (4) and in subsection (5) (twice), after “the copyright” insert“ or design right ”;

(d) in subsection (8)(c) for “or work in which copyright subsists” substitute “work in which copyright subsists or design in which design right subsists ”.

(4) In section 5 (effect of war on international arrangements)—(a) in subsection (1) for “section twenty-nine of the Copyright Act 1911”

substitute “ section 159 or 256 of the Copyright, Designs and Patents Act1988 (countries enjoying reciprocal copyright or design right protection) ”;

(b) in subsection (2) after “copyright” (four times) insert “ or design right ”and for “the Copyright Act 1911” (twice) substitute “ Part I or III of theCopyright, Designs and Patents Act 1988 ”.

(5) In section 10(1) (interpretation) omit the definition of “copyright”, and for thedefinitions of “design”, “invention”, “patent” and “patentee” substitute—

““design” has in reference to a registered design the same meaning as inthe Registered Designs Act 1949, and in reference to design right the samemeaning as in Part III of the Copyright, Designs and Patents Act 1988;

“invention” and “patent” have the same meaning as in the Patents Act1977.”.

Crown Proceedings Act 1947 (c.44)4 (1) In the Crown Proceedings Act 1947 for section 3 (provisions as to industrial property)

substitute—

“3 Infringement of intellectual property rights.“3 “3 Infringement of intellectual property rights.

(1) Civil proceedings lie against the Crown for an infringement committed by aservant or agent of the Crown, with the authority of the Crown, of—

(a) a patent,(b) a registered trade mark or registered service mark,(c) the right in a registered design,(d) design right, or(e) copyright;

but save as provided by this subsection no proceedings lie against the Crownby virtue of this Act in respect of an infringement of any of those rights.




(2) Nothing in this section, or any other provision of this Act, shall be construedas affecting—

(a) the rights of a government department under section 55 of thePatents Act 1977, Schedule 1 to the Registered Designs Act 1949 orsection 240 of the Copyright, Designs and Patents Act 1988 (Crownuse of patents and designs), or

(b) the rights of the Secretary of State under section 22 of the PatentsAct 1977 or section 5 of the Registered Designs Act 1949 (securityof information prejudicial to defence or public safety).”.

(2) In the application of sub-paragraph (1) to Northern Ireland—(a) the reference to the Crown Proceedings Act 1947 is to that Act as it applies

to the Crown in right of Her Majesty’s Government in Northern Ireland, aswell as to the Crown in right of Her Majesty’s Government in the UnitedKingdom, and

(b) in the substituted section 3 as it applies in relation to the Crown in right ofHer Majesty’s Government in Northern Ireland, subsection (2)(b) shall beomitted.

Patents Act 1949 (c.87)5 In section 47 of the Patents Act 1949 (rights of third parties in respect of Crown use

of patent), in the closing words of subsection (1) (which relate to the use of modelsor documents), after “copyright” insert “ or design right ”.

Public Libraries (Scotland) Act 1955 (c.27)

6 In section 4 of the Public Libraries (Scotland) Act 1955 (extension of lending powerof public libraries), make the existing provision subsection (1) and after it add—

“(2) The provisions of Part I of the Copyright, Designs and Patents Act 1988(copyright) relating to the rental of copies of sound recordings, films andcomputer programs apply to any lending by a statutory library authority ofcopies of such works, whether or not a charge is made for that facility.”.

London County Council (General Powers) Act 1958 (c.xxi)7 In section 36 of the London County Council (General Powers) Act 1958 (power

as to libraries: provision and repair of things other than books) for subsection (5)substitute—

“(5) Nothing in this section shall be construed as authorising an infringement ofcopyright.”.

Public Libraries and Museums Act 1964 (c.75)

8 In section 8 of the Public Libraries and Museums Act 1964 (restrictions on chargesfor library facilities), after subsection (5) add—


331



“(6) The provisions of Part I of the Copyright, Designs and Patents Act 1988(copyright) relating to the rental of copies of sound recordings, films andcomputer programs apply to any lending by a library authority of copies ofsuch works, whether or not a charge is made for that facility.”.

Marine, &c., Broadcasting (Offences) Act 1967 (c.41)

9 In section 5 of the Marine, &c., Broadcasting (Offences) Act 1967 (provision ofmaterial for broadcasting by pirate radio stations)—

(a) in subsection (3)(a) for the words from “cinematograph film” to “in therecord” substitute “ film or sound recording with intent that a broadcast ofit ”; and

(b) in subsection (6) for the words from “and references” to the end substitute“ and “film”, “sound recording”, “literary, dramatic or musical work” and“artistic work” have the same meaning as in Part I of the Copyright, Designsand Patents Act 1988 (copyright) ”.

Medicines Act 1968 (c.67)

10 (1) Section 92 of the Medicines Act 1968 (scope of provisions restricting promotion ofsales of medicinal products) is amended as follows.

(2) In subsection (1) (meaning of “advertisement”) for the words from “or by theexhibition” to “service” substitute “ or by means of a photograph, film, soundrecording, broadcast or cable programme, ”.

(3) In subsection (2) (exception for the spoken word)—(a) in paragraph (a) omit the words from “or embodied” to “film”; and(b) in paragraph (b) for the words from “by way of” to the end substitute “ or

included in a cable programme service ”.


“(6) In this section “film”, “sound recording”, “broadcast”, “cable programme”,“cable programme service”, and related expressions, have the same meaningas in Part I of the Copyright, Designs and Patents Act 1988 (copyright).”.

Post Office Act 1969 (c.48)11 In Schedule 10 to the Post Office Act 1969 (special transitional provisions relating

to use of patents and registered designs), in the closing words of paragraphs 8(1)and 18(1) (which relate to the use of models and documents), after “copyright”insert “ or design right ”.

Merchant Shipping Act 1970 (c.36)12 In section 87 of the Merchant Shipping Act 1970 (merchant navy uniform), for

subsection (4) substitute—




“(4) Where any design forming part of the merchant navy uniform has beenregistered under the Registered Designs Act 1949 and the Secretary of Stateis the proprietor of the design, his right in the design is not limited to theperiod prescribed by section 8 of that Act but shall continue to subsist solong as the design remains registered.”.

Taxes Management Act 1970 (c.9)13 In section 16 of the Taxes Management Act 1970 (returns to be made in respect of

certain payments)—(a) in subsection (1)(c), and(b) in subsection (2)(b),

for “or public lending right” substitute “ , public lending right, right in a registereddesign or design right ”.

Tribunals and Inquiries Act 1971 (c.62)

14 In Part I of Schedule 1 to the Tribunals and Inquiries Act 1971 (tribunals underdirect supervision of Council on Tribunals) renumber the entry inserted by theM120Data Protection Act 1984 as “5B” and before it insert—

Copyright.“5A The Copyright Tribunal.”


Fair Trading Act 1973 (c.41)

15 In Schedule 4 to the Fair Trading Act 1973 (excluded services), for paragraph 10(services of patent agents) substitute—

“10 The services of registered patent agents (within the meaning of Part V ofthe Copyright, Designs and Patents Act 1988) in their capacity as such.”;

and in paragraph 10A (services of European patent attorneys) for “section 84(7)of the Patents Act 1977" substitute “Part V of the Copyright, Designs and PatentsAct 1988".

House of Commons Disqualification Act 1975 (c.24)16 In Part II of Schedule 1 to the House of Commons Disqualification Act 1975

(bodies of which all members are disqualified), at the appropriate place insert “ TheCopyright Tribunal ”.



333



Northern Ireland Assembly Disqualification Act 1975 (c.25)17 In Part II of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975

(bodies of which all members are disqualified), at the appropriate place insert “ TheCopyright Tribunal ”.

Restrictive Trade Practices Act 1976 (c.34)18 (1) The Restrictive Trade Practices Act 1976 is amended as follows.

(2) In Schedule 1 (excluded services) for paragraph 10 (services of patent agents)substitute—

“10 The services of registered patent agents (within the meaning of Part V ofthe Copyright, Designs and Patents Act 1988) in their capacity as such.”;

and in paragraph 10A (services of European patent attorneys) for “section 84(7) ofthe Patents Act 1977” substitute “ Part V of the Copyright, Designs and Patents Act1988 ”.

(3) In Schedule 3 (excepted agreements), after paragraph 5A insert—

“ Design right5B (1) This Act does not apply to—

(a) a licence granted by the owner or a licensee of any design right,(b) an assignment of design right, or(c) an agreement for such a licence or assignment,

if the licence, assignment or agreement is one under which no suchrestrictions as are described in section 6(1) above are accepted, or nosuch information provisions as are described in section 7(1) above aremade, except in respect of articles made to the design; but subject to thefollowing provisions.

(2) Sub-paragraph (1) does not exclude a licence, assignment or agreementwhich is a design pooling agreement or is granted or made (directly orindirectly) in pursuance of a design pooling agreement.

(3) In this paragraph a “design pooling agreement” means an agreement—(a) to which the parties are or include at least three persons(the

“principal parties”) each of whom has an interest in one or moredesign rights, and

(b) by which each principal party agrees, in respect of design rightin which he has, or may during the currency of the agreementacquire, an interest to grant an interest (directly or indirectly) toone or more of the other principal parties, or to one or more ofthose parties and to other persons.

(4) In this paragraph—“assignment”, in Scotland, means assignation; and“interest” means an interest as owner or licensee of design

right.

(5) This paragraph applies to an interest held by or granted to more than oneperson jointly as if they were one person.




(6) References in this paragraph to the granting of an interest to a personindirectly are to its being granted to a third person for the purpose ofenabling him to make a grant to the person in question.”.

Resale Prices Act 1976 (c. 53)19 In section 10(4) of the Resale Prices Act 1976 (patented articles: articles to be

treated in same way), in paragraph (a) after “protected” insert “ by design right or ”.

Patents Act 1977 (c. 37)20 In section 57 of the Patents Act 1977 (rights of third parties in respect of Crown use

of patent), in the closing words of subsection (1) (which relate to the use of modelsor documents), after “copyright” insert “ or design right ”.

21 In section 105 of the Patents Act 1977 (privilege in Scotland for communicationsrelating to patent proceedings), omit “within the meaning of section 104 above”,make the existing text subsection (1) and after it insert—

“(2) In this section—“patent proceedings” means proceedings under this Act or any

of the relevant conventions, before the court, the comptroller or therelevant convention court, whether contested or uncontested andincluding an application for a patent; and

“the relevant conventions” means the European PatentConvention, the Community Patent Convention and the Patent Co-operation Treaty.”.

22 In section 123(7) of the Patents Act 1977 (publication of case reports by thecomptroller)—

(a) for “and registered designs” substitute “ registered designs or design right ”,(b) for “and copyright” substitute “ , copyright and design right ”.

23 In section 130(1) of the Patents Act 1977 (interpretation), in the definition of“court”, for paragraph (a) substitute—

“(a) as respects England and Wales, the High Court or any patents countycourt having jurisdiction by virtue of an order under section 287 ofthe Copyright, Designs and Patents Act 1988;”.

Unfair Contract Terms Act 1977 (c. 50)24 In paragraph 1 of Schedule 1 to the Unfair Contract Terms Act 1977 (scope of

main provisions: excluded contracts), in paragraph (c) (contracts relating to grantor transfer of interest in intellectual property) after “copyright” insert “ or designright ”.

Judicature (Northern Ireland) Act 1978 (c. 23)25 In section 94A of the Judicature (Northern Ireland) Act 1978 (withdrawal of

privilege against self-incrimination in certain proceedings relating to intellectualproperty), in subsection (5) (meaning of “intellectual property”) after “copyright”insert “ or design right ”.


335



Capital Gains Tax Act 1979 (c. 14)

26 In section 18(4) of the Capital Gains Tax Act 1979 (situation of certain assets forpurposes of Act), for paragraph (h) (intellectual property) substitute—

“(ha) patents, trade marks, service marks and registered designs aresituated where they are registered, and if registered in more than oneregister, where each register is situated, and rights or licences to usea patent, trade mark, service mark or registered design are situatedin the United Kingdom if they or any right derived from them areexercisable in the United Kingdom,

(hb) copyright, design right and franchises, and rights or licences to useany copyright work or design in which design right subsists, aresituated in the United Kingdom if they or any right derived fromthem are exercisable in the United Kingdom,”.

British Telecommunications Act 1981 (c. 38)

27 In Schedule 5 to the British Telecommunications Act 1981 (special transitionalprovisions relating to use of patents and registered designs), in the closing wordsof paragraphs 9(1) and 19(1) (which relate to the use of models and documents),after “copyright” insert “ or design right ”.

Supreme Court Act 1981 (c. 54)

28 (1) The Supreme Court Act 1981 is amended as follows.

(2) In section 72 (withdrawal of privilege against self-incrimination in certainproceedings relating to intellectual property), in subsection (5) (meaning of“intellectual property”) after “copyright” insert “ , design right ”.

(3) In Schedule 1 (distribution of business in the High Court), in paragraph 1(i) (businessassigned to the Chancery Division: causes and matters relating to certain intellectualproperty) for “or copyright” substitute “ , copyright or design right ”.

F12229,30.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual AmendmentsF122 Sch. 7 paras. 29, 30 repealed by Broadcasting Act 1990 (c. 42, SIF 96), s. 203(3), Sch. 21 (the repeal

being in force subject, as to para. 29, as mentioned in S.I. 1990/2347 art. 3(3))

Companies Act 1985 (c. 6)

[F12331(1) Part XII of the Companies Act 1985 (registration of charges) is amended as follows.

(2) In section 396 (registration of charges in England and Wales: charges which must beregistered), in subsection (1)(j) for the words from “on a patent” to the end substitute“ or on any intellectual property ”, and after subsection (3) insert—










“(3A) The following are “intellectual property” for the purposes of this section—(a) any patent, trade mark, service mark, registered design, copyright

or design right;(b) any licence under or in respect of any such right.”.

(3) In section 410 (registration of charges in Scotland: charges which must be registered),in subsection (4)(c) (incorporeal moveable property) after subparagraph (vi) insert—

“(vii) a registered design or a licence in respect of such a design,(viii) a design right or a licence under a design right,”.]

Textual AmendmentsF123 Sch. 7 para. 31 repealed (prosp.) by Companies Act 1989 (c. 40, SIF 27), ss. 212, 215(2), Sch. 24

Law Reform (Miscellaneous Provisions) (Scotland) Act 1985 (c. 73)32 In section 15 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1985

(withdrawal of privilege against self-incrimination in certain proceedings relatingto intellectual property), in subsection (5) (meaning of “intellectual property”) after“copyright” insert “ or design right ”.

Atomic Energy Authority Act 1986 (c. 3)33 In section 8(2) of the Atomic Energy Authority Act 1986 (powers of Authority as

to exploitation of research: meaning of “intellectual property”), after “copyrights”insert “ , design rights ”.

Education and Libraries (Northern Ireland) Order 1986 (S.I. 1986/594 (N.I.3))

34 In Article 77 of the Education and Libraries (Northern Ireland) Order 1986 (chargesfor library services), after paragraph (2) add—

“(3) The provisions of Part I of the Copyright, Designs and Patents Act 1988(copyright) relating to the rental of copies of sound recordings, films andcomputer programs apply to any lending by a board of copies of such works,whether or not a charge is made for that facility.”

Companies (Northern Ireland) Order 1986 (S.I. 1986/1032 (N.I.6))

[F12435 In Article 403 of the Companies (Northern Ireland) Order 1986 (registration ofcharges: charges which must be registered), in paragraph (1)(j) for the words from“on a patent” to the end substitute “ or on any intellectual property ”, and afterparagraph (3) insert—

“(3A) The following are “intellectual property” for the purposes of this Article—(a) any patent, trade mark, service mark, registered design, copyright

or design right;(b) any licence under or in respect of any such right.”.]







337



Textual AmendmentsF124 Sch. 7 para. 35 repealed (prosp.) by S.I. 1990/1504 (N.I. 10), arts. 1, 113, Sch. 6

Income and Corporation Taxes Act 1988 (c. 1)

36 (1) The Income and Corporation Taxes Act 1988 is amended as follows.

(2) In section 83 (fees and expenses deductible in computing profits and gains of trade)for “the extension of the period of copyright in a design” substitute “ an extension ofthe period for which the right in a registered design subsists ”.

(3) In section 103 (charge on receipts after discontinuance of trade, profession orvocation), in subsection (3) (sums to which the section does not apply), afterparagraph (b) insert—

“(bb) a lump sum paid to the personal representatives of the designerof a design in which design right subsists as consideration for theassignment by them, wholly or partially, of that right,”.

(4) In section 387 (carry forward as losses of certain payments made under deductionof tax), in subsection (3) (payments to which the section does not apply), inparagraph (e) (copyright royalties) after “applies” insert “ or royalties in respect ofa right in a design to which section 537B applies ”.

(5) In section 536 (taxation of copyright royalties where owner abroad), for the definitionof “copyright” in subsection (2) substitute—

““copyright” does not include copyright in—(i) a cinematograph film or video recording, or

(ii) the sound-track of such a film or recording, so far as it is not separatelyexploited; and”.

(6) In Chapter I of Part XIII (miscellaneous special provisions: intellectual property),after section 537 insert—

“ Designs

537A Relief for payments in respect of designs.537A Relief for payments in respect of designs.

(1) Where the designer of a design in which design right subsists assigns thatright, or the author of a registered design assigns the right in the design,wholly or partially, or grants an interest in it by licence, and—

(a) the consideration for the assignment or grant consists, in whole or inpart, of a payment to which this section applies, the whole amountof which would otherwise be included in computing the amount ofhis profits or gains for a single year of assessment, and

(b) he was engaged in the creation of the design for a period of morethan 12 months,



http://www.legislation.gov.uk/id/nisi/1990/1504/article/1

http://www.legislation.gov.uk/id/nisi/1990/1504/article/113

http://www.legislation.gov.uk/id/nisi/1990/1504/schedule/6




he may, on making a claim, require that effect shall be given to the followingprovisions in connection with that payment.

(2) If the period for which he was engaged in the creation of the design does notexceed 24 months, then, for all income tax purposes, one-half only of theamount of the payment shall be treated as having become receivable on thedate on which it actually became receivable and the remaining half shall betreated as having become receivable 12 months before that date.

(3) If the period for which he was engaged in the creation of the design exceeds24 months, then, for all income tax purposes, one-third only of the amountof the payment shall be treated as having become receivable on the date onwhich it actually became receivable, and one-third shall be treated as havingbecome receivable 12 months, and one-third 24 months, before that date.

(4) This section applies to—(a) a lump sum payment, including an advance on account of royalties

which is not returnable, and(b) any other payment of or on account of royalties or sums payable

periodically which does not only become receivable more than twoyears after articles made to the design or, as the case may be, articlesto which the design is applied are first made available for sale or hire.

(5) A claim under this section with respect to any payment to which it appliesby virtue only of subsection (4)(b) above shall have effect as a claim withrespect to all such payments in respect of rights in the design in questionwhich are receivable by the claimant, whether before or after the claim; andsuch a claim may be made at any time not later than 5th April next followingthe expiration of eight years after articles made to the design or, as the casemay be, articles to which the design is applied were first made available forsale or hire.

(6) In this section—(a) “designer” includes a joint designer, and(b) any reference to articles being made available for sale or hire is

to their being so made available anywhere in the world by or withthe licence of the design right owner or, as the case may be, theproprietor of the registered design.

537B Taxation of design royalties where owner abroad.537B Taxation of design royalties where owner abroad.

(1) Where the usual place of abode of the owner of a right in a design is notwithin the United Kingdom, section 349(1) shall apply to any payment ofor on account of any royalties or sums paid periodically for or in respect ofthat right as it applies to annual payments not payable out of profits or gainsbrought into charge to income tax.

(2) In subsection (1) above—(a) “right in a design” means design right or the right in a registered

design,


339



(b) the reference to the owner of a right includes a person who,notwithstanding that he has assigned the right to some other person,is entitled to receive periodical payments in respect of the right, and

(c) the reference to royalties or other sums paid periodically for or inrespect of a right does not include royalties or sums paid in respectof articles which are shown on a claim to have been exported fromthe United Kingdom for distribution outside the United Kingdom.

(3) Where a payment to which subsection (1) above applies is made through anagent resident in the United Kingdom and that agent is entitled as againstthe owner of the right to deduct any sum by way of commission in respectof services rendered, the amount of the payment shall for the purposes ofsection 349(1) be taken to be diminished by the sum which the agent isentitled to deduct.

(4) Where the person by or through whom the payment is made does not knowthat any such commission is payable or does not know the amount of anysuch commission, any income tax deducted by or assessed and charged onhim shall be computed in the first instance on, and the account to be deliveredof the payment shall be an account of, the total amount of the paymentwithout regard being had to any diminution thereof, and in that case, on proofof the facts on a claim, there shall be made to the agent on behalf of theowner of the right such repayment of income tax as is proper in respect ofthe sum deducted by way of commission.

(5) The time of the making of a payment to which subsection (1) above appliesshall, for all tax purposes, be taken to be the time when it is made by theperson by whom it is first made and not the time when it is made by orthrough any other person.

(6) Any agreement for the making of any payment to which subsection (1) aboveapplies in full and without deduction of income tax shall be void.”.

(7) In section 821 (payments made under deduction of tax before passing of Actimposing income tax for that year), in subsection (3) (payments subject toadjustment) after paragraph (a) insert—

“(aa) any payment for or in respect of a right in a design to whichsection 537B applies; and”.

(8) In Schedule 19 (apportionment of income of close companies), in paragraph 10(4)(cessation or liquidation: debts taken into account although creditor is participatoror associate), in paragraph (c) (payments for use of certain property) for the wordsfrom “tangible property” to “extend)” substitute—

“(i) tangible property,(ii) copyright in a literary, dramatic, musical or artistic work within

the meaning of Part I of the Copyright, Designs and Patents Act1988 (or any similar right under the law of a country to whichthat Part does not extend), or

(iii) design right,”.

(9) In Schedule 25 (taxation of UK-controlled foreign companies: exempt activities),in paragraph 9(1)(a) (investment business: holding of property) for “patents orcopyrights” substitute “ or intellectual property ” and after that subparagraph insert—

340 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 8 – Repeals



“(1A) In sub-paragraph (1)(a) above “intellectual property” means patents,registered designs, copyright and design right (or any similar rights underthe law of a country outside the United Kingdom).”.

SCHEDULE 8 Section 303(2).

REPEALS

1939 c. 107. Patents, Designs,Copyright and Trade Marks(Emergency) Act 1939.

In section 10(1), thedefinition of “copyright".

1945 c. 16. Limitation (Enemies and WarPrisoners) Act 1945.

In sections 2(1) and 4(a), thereference to section 10 of theCopyright Act 1911.

1949 c. 88. Registered Designs Act 1949. In section 3(2), the words “ororiginal".

Section 5(5). In section 11(2), the words

“or original". In section 14(3), the words

“or the Isle of Man". Section 32. Section 33(2). Section 37(1). Section 38. In section 44(1), the

definitions of “copyright" and“Journal".

In section 45, paragraphs (1)and (2).

In section 46, paragraphs (1)and (2).

1949 c. 88.—cont. Registered Designs Act 1949.—cont.

Section 48(1).

In Schedule 1, in paragraph3(1), the words “in suchmanner as may be prescribedby rules of court".

Schedule 2.1956 c. 74. Copyright Act 1956. The whole Act.

Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 8 – RepealsDocument Generated: 2020-11-25

341



1957 c. 6. Ghana Independence Act1957.

In Schedule 2, paragraph 12.

1957 c. 60. Federation of MalayaIndependence Act 1957.

In Schedule 1, paragraphs 14and 15.

1958 c. 44. Dramatic and MusicalPerformers’ Protection Act1958.

The whole Act.

1958 c. 51. Public Records Act 1958. Section 11. Schedule 3.1960 c. 52. Cyprus Independence Act

1960.In the Schedule, paragraph13.

1960 c. 55. Nigeria Independence Act1960.


1961 c. 1. Tanganyika IndependenceAct 1961.


1961 c. 16. Sierra Leone IndependenceAct 1961.


1961 c. 25. Patents and Designs(Renewals, Extensions andFees) Act 1961.

The whole Act.

1962 c. 40. Jamaica Independence Act1962.


1962 c. 54. Trinidad and TobagoIndependence Act 1962.


1963 c. 53. Performers’ Protection Act1963.

The whole Act.

1964 c. 46. Malawi Independence Act1964.


1964 c. 65. Zambia Independence Act1964.


1964 c. 86. Malta Independence Act1964.


1964 c. 93. Gambia Independence Act1964.


1966 c. 24. Lesotho Independence Act1966.

In the Schedule, paragraph 9.

1966 c. 37. Barbados Independence Act1966.


1967 c. 80. Criminal Justice Act 1967. In Parts I and IV ofSchedule 3, the entriesrelating to the RegisteredDesigns Act 1949.

342 Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 8 – Repeals



1968 c. 56. Swaziland Independence Act1968.

In the Schedule, paragraph 9.

1968 c. 67. Medicines Act 1968. In section 92(2)(a), thewords from “or embodied" to“film".

Section 98.1968 c. 68. Design Copyright Act 1968. The whole Act.1971 c. 4. Copyright (Amendment) Act

1971.The whole Act.

1971 c. 23. Courts Act 1971. In Schedule 9, the entryrelating to the Copyright Act1956.

1971 c. 62. Tribunals and Inquiries Act1971.


1972 c. 32. Performers’ Protection Act1972.

The whole Act.

1975 c. 24. House of CommonsDisqualification Act 1975.

In Part II of Schedule 1,the entry relating to thePerforming Right Tribunal.

1975 c. 25. Northern Ireland AssemblyDisqualification Act 1975.

In Part II of Schedule 1,the entry relating to thePerforming Right Tribunal.

1977 c. 37. Patents Act 1977. Section 14(4) and (8). In section 28(3),

paragraph (b) and the word“and" preceding it.

Section 28(5) to (9). Section 49(3). Sections 72(3). Sections 84 and 85. Section 88. Section 104. In section 105, the words

“within the meaning ofsection 104 above".

Sections 114 and 115. Section 123(2)(k). In section 130(1), the

definition of “patent agent". In section 130(7), the words

“88(6) and (7),".

Copyright, Designs and Patents Act 1988 (c. 48)SCHEDULE 8 – RepealsDocument Generated: 2020-11-25

343



In Schedule 5, paragraphs1 and 2, in paragraph 3 thewords “and 44(1)" and “ineach case", and paragraphs 7and 8.

1979 c. 2. Customs and ExciseManagement Act 1979.

In Schedule 4, the entryrelating to the Copyright Act1956.

1980 c. 21. Competition Act 1980. Section 14.1981 c. 68. Broadcasting Act 1981. Section 20(9)(a).1982 c. 35. Copyright Act 1956

(Amendment) Act 1982.The whole Act.

1983 c. 42. Copyright (Amendment) Act1983.

The whole Act.

1984 c. 46. Cable and Broadcasting Act1984.

Section 8(8).

Section 16(4) and (5). Sections 22 to 24. Section 35(2) and (3). Sections 53 and 54. In section 56(2), the

definition of “the 1956 Act". In Schedule 5, paragraphs 6,

7, 13 and 23.1985 c. 21. Films Act 1985. Section 7(2).1985 c. 41. Copyright (Computer

Software) Amendment Act1985.

The whole Act.

1985 c. 61. Administration of Justice Act1985.

Section 60.

1986 c. 39. Patents, Designs and MarksAct 1986.

In Schedule 2, paragraph1(2)(a), in paragraph 1(2)(k)the words “subsection (1)(j) of section 396 and" andin paragraph 1(2)(1) thewords “subsection (2)(i) ofsection 93".

1988 c. 1. Income and CorporationTaxes Act 1988.


344 Copyright, Designs and Patents Act 1988 (c. 48)Document Generated: 2020-11-25

Status: Point in time view as at 01/02/1991. This version of this Act contains provisions that are notvalid for this point in time.

Changes to legislation: Copyright, Designs and Patents Act 1988 is up to date with all changes known to be in force onor before 25 November 2020. There are changes that may be brought into force at a future date.Changes that have been made appear in the content and are referenced with annotations.

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